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THE 

Constitution  and   Government 

OF    THE 

State  of  New  York 


AN   APPRAISAL 


TRANSMITTED  TO  THE 

NEW  YORK  STATE  CONSTITUTIONAL  CONVENTION 


NEW  YORK  STATE  CONSTITUTIONAL  CONVENTION 
COMMISSION 


BUREAU   OF   MUNICIPAL   RESEARCH 
"  1915 


«.*o 


.V''^ 


t^o* 


^ 


To  THE  Constitutional  Convention: 

This  critical  review,  made  by  the  same  Bureau  which  in  co- 
operation with  the  State  Department  of  Efficiency  and  Economy 
prepared  for  this  Commission  the  report  entitled  "  Government  of 
the  State  of  New  York  —  a  Survey  of  its  Organization  and 
Functions,"  is  transmitted  by  the  Commission  without  responsi- 
bility for  the  opinions  expressed,  but  with  appreciation  of  the 
disinterested  service  which  the  Bureau  has  given  in  the  study  of 
the  machinery  of  State  government  and  its  operation. 

New  York  State  Constitutional  Convention  Commission 


':?QOQnn 


EXCHANGE 

JA.^    5    1916 


LETTER  OF  TRANSMISSION 


Hon.  Morgan  J.  O'Brien,  Chairman, 

Constitutional  Convention  Commission, 

2  Rector  Street,  New  York  City : 

Dear  Sir — As  requested,  we  are  sending  an  appraisal  of  the  consti- 
tution and  government  of  the  state  of  New  York — based  on  the  detail 
outline  and  descriptive  report  entitled  "  Government  of  the  State  of  New 
York — A  Survey  of  its  Organization  and  Functions,"  prepared  and  sub- 
mitted jointly  with  the  state  Department  of  Efficiency  and  Economy. 

The  discussion  is  divided  into  the  following  chapters : 

Standards  for  Appraisement. 

Electorate. 

Official  Personnel. 

Structure  of  Government. 

Organization  and  Procedure  of  the  Legislature. 

Relations  of  the  Legislature  and  the  Executive. 

Independent  Auditor. 

Governor  and  Administration. 

Administration  of  Proprietary  and  General  Functions. 

Administration  of  Military  Functions. 

Administration  of  Public  Service  Functions. 

Form  and  Content  of  the  Constitution. 

Inasmuch  as  the  constitution  is  here  treated  primarily  from  the  stand- 
point of  administration,  the  subject  of  judicial  organization  and  procedure 
is  omitted. 

Very  sincerely, 

F.  A.  Cleveland, 

Director. 


OUTLINE  OF  CONTENTS 


PAGE 

Chapter  I — Introductory  and  summary 1 

Chapter    II — Standards    for   the    Appraisement    of    the    Present    Con- 
stitution AND  Government 6 

Government  established  for  the  governed 6 

Requirements  of  a  representative  system 6 

Expedients    adopted    to    make    private    management    "  responsive "    and 

"  responsible  "    7 

The  meaning  of  executive  responsibility 7 

Relation  of  executive  to  administration 8 

Relations  of  the  board  of  "  representatives  "  to  administration 8 

Means  for  keeping  "representatives"  and  "members"  informed....  8 

An  independent  auditor 9 

The  right  of  interpellation  and  personal  inquiry 10 

Access  of  "  representatives  "  and  "  members  "  to  records 10 

Provisions   for  publicity  and  discussion 10 

Positive  provision  for  making  management  effective 10 

Adoption  of  means  of  obtaining  and  retaining  a  faithful  and  efficient 

personnel  11 

Administrative  staff  agencies 11 

Use  of  "line"  and  "staff"  advisers 12 

Prompt  retirement  of  officers  who  do  not  represent  a  majority 13 

Absence  of   "  irresponsible  boss "   in   the  administration   of   private 

business  13 

Conditions  under  which  private  management  becomes  irresponsible..  13 

Expedients  adopted  to  make  control  over  public  business   effective....  14 

Similar  to  those  employed  in  private  undertakings 14 

Responsiveness  and  responsibility  of  executive 15 

The  mechanism  of  popular  control 15 

Responsibility    for   leadership 16 

Chapter  III — The  Electorate  17 

Definition  of  the  electorate 17 

Composition  in  England  after  magna  charta 17 

Who  constituted  electorate  in  1777 18 

Initially,  electorate  a  small  fraction  of  the  citizenship 18 

Subsequent  enlargement  of  electorate 18 

Controversy  over  present  provisions 19 

Public  charges  not  disfranchised 19 

The  question  of  woman  suffrage 20 

Provision  for  the  definition  and  discussion  of  political  issues 21 

Conditions  governing  effectiveness  of  electorate 21 

Necessity  for  development  of  a  procedure 21 

The  whole  subject  left  to  private  initiative 22 

The  party  platform  as  an  attempt  to  define  issues 23 

Method  not  adapted  to  responsible  government 23 

Provisions  safeguarding  the  exercise  of  the  franchise 24 

Successful  development  of  safeguards  in  the  United  States 24 

Citizenship  and  registration 25 

The  form  of  the  Australian  ballot 25 

State  supervision  of  elections 26 


OUTLINE  OF   CONTENTS 


PAGE 

Chapter  IV — The  Official  Personnel 28 

Provisions   of   law   governing  the   qualifications,   methods    of    selection, 
tenure,  compensation,  and  welfare  of  persons  employed  in  the  public 

service   28 

Sulxli visions    of    subject 28 

Importance  of  separate  consideration 28 

Alethods  of  selecting  public  agents — election  or  appointment 29 

Election  of  members  of  the  legislature  and  the  governor 29 

Election  of  other  officers 29 

Provisions  in  constitutions  of  New  York 30 

Choice  by  legislature  and  "  the  Albany  Regency  " 30 

Direct  election  as  a  cure  for  "  Invisible  government " 30 

General  acceptance  of  theory  as  democratic 31 

Need    for    principle    consistent    with    requirements    of    responsible 

government    31 

Advocates  of  the  present  method  on  the  defensive 32 

Assuming   "Electorate"    adapted    to    choosing,    not   consistent    with 

administration  ?i2 

Limitations  of  electorate 2,2, 

Requirements  of  administration 2,2 

Appointment  of  subordinates  an  essential  of  executive  responsibility  23 

Chart  1 34 

Key  to  Chart  1 35 

Methods  of  appointment 36 

Present   legal   provisions   governing 26 

Purpose — to   prevent   responsible   leadership , 27 

Constitutional   provisions   determining   qualifications   and    fitness 27 

Requirements  of  elective  officers  fortuitous 38 

Requirements    of   appointed    officers    and    employees    inadequate....  38 

Chart  II 38a 

Key  to  Chart  II 381i 

Prescription   of   merit   system   defective 39 

Limited  to  "Examinations"  as   a  test   for  promotion 39 

Gives  soldiers  and  sailors  preference  without  regard  to  standing....  39' 

Makes  for  official  irresponsibility ; 40 

Methods   of   removal 40 

Not  consistent  witli   provisions   governing  appointments 41 

Provisions  relative  to  the  tenure  of  public  agents 41 

Chart  III 42 

Key  to  Chart  III 43 

Frequent  elections 44 

Longer  tenure  and  provision  for  reference  of  issues  to  electorate..  44 
Present  tenures  not  consistent  with  requirements  of  responsive,   re- 
sponsible and  efficient  governmen": 44 

Chart  IV 44a 

Key  to  Chart  IV 441i 

Conditions  of  public  employment 46 

Provisions  governing  promotion  in  the  public  service 46 

Provisions  relating  to  standards  of  compensation 47 

Lack  of  business-like  basis  for  fixing  of  compensation  and  work  re- 
quirements      47 


OUTLINE   OF   CONTENTS 


Chapter  I\' — Continued  page 
Conditions  of  public  employment — ■Continued 

Summary  of  principal  defects  in  employment  conditions 48 

Summary  of   related   defects 48 

Causes   for  present  conditions 48 

Steps  taken  to  improve  present  conditions ;  the  senate  committee  on 

civil  service   49 

Chapter  V — The  Structure  of  Government  and  the  Powers,  Duties  and 

Limitations  of  Officers 50 

Need  for  preconception  of  structural  plan 50 

Common  structural  essential  of  a  representative  system 50 

Types  of  organization  for  administration 50 

.    The  committee  or  commission  type 51 

Revolutionary  expedients — English  and  American 51 

American  committees  of  safety 51 

The  failure  of  committee  systems 52 

The  commission  form  of  government 52 

Administration  under  a  responsible  chief  executive 53 

Distinguishing  characteristics  of  type 53 

All  responsible,  but  differing  degrees  of  success  in  development  of 

efficiency    53 

An  independently  organized  administration  without  leadership 54 

The   mechanism   for   making   management  responsible   recent   in   its   de- 
velopment     55 

The  English  rule  limiting  the  cabinet  personnel  to  responsible  officers 

not  adopted  till  1801   55 

A  single  responsible  head   not  recognized  in   England  till  after  the 

American  Revolution 56 

The  mechanism   for   carrying  issues   before   the   electorate  not   per- 
fected until  after  1832   56 

Means    for    making    control    through    representatives    effective,    not 

generally  adopted  in  Europe  till  after  1848 56 

The   isolated   development   of   the   American   type   of    representative 

government    57 

All  real  gains  in  American  government  have  been  in  the  direction  of 

the  second  type 58 

The  fundamental  question  for  the  convention 58 

Chapter  VI — Organization  and  Procedure  of  the  Legislature 59 

Indictments  of  the  present  organization  and  procedure  of  the  legislature  59 

The  organization  and  procedure  have  worked  badly 60 

Experience  in   other  governments   similarly  organized 60 

Not  adapted  to  the  work  to  be  done 60 

Present  membership  represents  territory  and   not  constituencies 61 

Territorial   idea   originally   justified 61 

Significance  of  geographic  subdivisions  lost 61 

Only  one  territorial  issue  remains 61 

Evils  of  present  system  of  representation 61 

New  adaptations  made  in  other  political  jurisdictions 62 

The  bicameral  organization  originally  founded  on  class  interests....  62 
Number  of  members  of  the  legislature  not  determined  by  standards 

of  responsiveness  and  efficiency 64 

The  relation  of  members  to  constituencies 64 

The  relation  of  members  to  committee  work  and  debate 65 


OUTLIKE  OF   CONTENTS 


Chapter  VI — Continued 

Legislature  not  complementary  to  other  working  parts 65 

Rules  governing  legislature  in  session  out  of  harmony  with  purpose 65 

Rules  governing  not  adapted  to  enforcing  responsibility 66 

Legislature  in  conflict  with  authority  and  jurisdiction  of  the  executive..  66 
Standing  committees  not  adapted  to  the  proper  consideration  of  measures 

either  of  legislation  or  administration 67 

Legislative  staff  agencies   68 

Local  legislation 69 

Chapter    VII — Constitutional    Provisions    Defining    the    Relations    of 

Legislature  and  Executive 72 

Responsibility  for  use  of  executive  power  implies  leadership 72 

Need  for  executive  leadership  understood  at  time  of  first  constitution 72 

Two  important  ways  in  which  governor  is  recognized  as  leader 72) 

His    duty   to    recommend   measures 7Z 

His  power  to  call  representatives  together  in  extra  session 7i 

Lacking  in  means  for  making  leadership  effective 74 

Right  to  introduce  and  defend  measures  necessary  to  effective  leader- 
ship    74 

Argument  opposed  to  the  principle  not  well  founded 75 

Executive  leadership  essential  to  preservation  of  separation  of  powers.  75 

Executive  leadership  essential  to  safe  use  of  veto  power 75 

All  alternative  to  invisible  government 76 

No  provision  for  leadership  in  matters  of  economy 76 

Executive  veto  to  items  in  money  measures  only  a  palliative 76 

Uncertainty  of  operation  of  negative  power 77 

Positive  requirements  under  present  system  ineffective 77 

Constitutional  requirement  of  executive  to  frame,  submit  and  defend 

money   bills    77 

Constitution  lacking  in  means  for  enforcing  executive  responsibility 78 

No  provision  for  making  the  "  opposition  "  effective 78 

No  provision  for  the  prompt  retirement  of  officers  who  are  not  supported 

by  a  majority 78 

No  power  of  executive  dissolution 78 

Historic  reasons  for  failure  to  adopt  constitutional  plan  that  provides  for 

responsive  and  responsible  government 79 

Provision  made  to  prevent  a  misuse  of  the  powers  of  government 79 

Use  of  the  governor  as  a  negative  force  against  the  legislature 79 

The  use  of  the  courts  as  a  negative  force 80 

Our  system  of  checks  and  balances 81 

Development  of  the  irresponsible  boss 81 

Reaction    against    irresponsibility 81 

The  adoption  of  palliatives  to  little  purpose 82 

New  York  practice  a  perversion  of  the  principle  of  representative  gov- 
ernment    83 

Chapter  VIII — The  Independent  Auditor  84 

Defects  of  the  constitution  and  statute  law  providing  for  current  review 

and  approval  of  financial  transactions 84 

Audit  by  the  legislative  body  as  a  whole 84 

Audit  by  legislative  committee T 84 

Creation  o  i  an  independent  auditor 84 


OUTLINE  OF   CONTENT. 


PAGE 

Chapter  VIII — Continued 

Provisions  of  constitutional  law  in  New  York 85 

Defects  of  the  present  constitutional  provisions 85 

Defects  in  legislation  governing  the  office 86 

The  present  organization  of  the  office 86 

Organic  changes  provided  for  in  recent  bill 88 

Chapter  IX — The  Governor  and  the  Administration 89 

What   is   meant   by   "  administration  " 89 

Problems   of   management 89 

Proprietary   functions   and  problems 89 

Public   service    functions   and   problems 90 

General  requirements  of  organization  for  administration 90 

Executive  and  departmental  organization  of  the  state 90 

Principles    governing    determination    as    to    whether    executive    control 

should  be  centralized 91 

Application  of  general  principles  to  functional  groups 92 

"  Governor  "   or   "  chief   executive  " 94 

The  present  organization  for  executive  direction  and  control 97 

The  tenure  of  the  governor 97 

Chart   V 98 

Key  to  Chart  V 99 

The  power  of  appointment  and  removal 100 

Defects  in  departmental  organization 104 

Chapter  X — Organization  for  the  Administration  of  the  State's   Pro- 
prietary and  Other  General  Functions 105 

Present  agencies  of  the  state  included  in  the  proprietary  group 105 

Need    for   correlation   of   official   action   and   responsibility   involved    in 

the  handling  of  proprietary  activities 106 

Technical    advantages    of    grouping 107 

Secretary  of  state 108 

The  treasurer 109 

The  comptroller    (part)    Ill 

Need  for  a  central  accounting  and  property  division Ill 

A  central  purchasing  division Ill 

The  tax  department 112 

Department  of   excise 113 

The  centralization  of  financial  administration 113 

Conservation   department    1 14 

Commissioners  of  the  land  office 115 

The  attorney  general   115 

An  employment  department 117 

Chapter     XI — Organization      for     the     Administration     of      Military 

Functions  of  the  State  Government 118 

The  adjutant  general's  department 120 

The  state  armory  board 120 

The  armory  board  of  New  York  City 120 

The  national  guard  and  the  naval  militia 120 

Relation  of  state  militia  to  the  federal  government 120 

State  constabulary 121 

Conditions  which  make  for  irresponsibility 121 

Questions  pertaining  to   rank 122 

ix 


OUTLINE   OF   CONTENTS 


Chapter  XI — Continued  page 

The   signing   of   commissions 122 

Construction  of  armories  a  quartermasters  duty 122 

New  York  City  performing  state  functions 123 

Chapter  XII — Organization    for  the   Administration   of    Public   Service 

Functions 124 

The  need  for  grouping  services  for  purposes  of  administration 124 

Part  I — Organization   for  the  administration  of  activities  having  to  do 

with  the  promotion  of  agriculture  and  industry 124 

Conservation  department    125 

The  state   fair  commission 126 

Experiment    station    at    Geneva 127 

Lack  of   correlation   of   related    functions 127 

Need  for  change  in  tenure  of  office  of  commissioner  of  agriculture. .  128 
Improve  co-ordination  of   functions  within  the  department  of  agri- 
culture  suggested    128 

Staff  advisory  council  suggested 129 

Part  II — Organization  for  the  administration  of  public  works   functions  129 

Organizations  now  carrying  on  these   functions 130 

The  New  York  bridge  and  tunnel  commission 130 

Commission   to   investigate   port   conditions    and    pier    extensions    in 

New  York  harbor 130 

The  department  of  highways 130 

Trustees  of  public  buildings 131 

Department  of  pubHc  buildings 131 

Department   of   public   works 131 

Department  of  the  state  engineer 131 

Canal  board  131 

The  commissioners  of  the  canal   fund 132 

Department  of  architecture 132 

Palisades   interstate  park  commission 132 

Conservation  department    132 

Bronx  parkway  commission    133 

Constitutional  restrictions  on  executive  personnel 133 

Legislative  restrictions  on  the  selection  of  executive  personnel 134 

Constitutional  restrictions  which  prevent  the  development  of  efficient 

organization   and   management    134 

No  organization  available  for  constructive  planning 135 

Continuity  of  policy  in  management  impossible 136 

Defects  in  organization  of  the  architectural  service 137 

Department   of   buildings 138 

Engineering  service  in  the  conservation  commission 138 

Part  III — Organization  for  administration  of  pubHc  education 139 

Executive   functions  of   department  of   education 139 

Conditions  unfavorable  to  localization  and  enforcement  of  responsi- 
bility    140 

Method  of  selecting  the  board  of  regents 140 

Multiplicity  of  lines  of  control  in  the  department  of  education ■  141 

Lack  of  centralization  of  collateral  educational   functions '. .  141 

Lack  of  machinery  for  the  development  of  work  and  efficiency  pro- 
grams    ~. . . .  142 

Problems  of  state  educational  policy 142 


OUTLINE  OF   CONTENTS 


PAGE 

Chapter  XII — Continued 

Part   III — Continued 

The  unit  for  local  administration  of  public  education 143 

Provisions  for  free  text-books  throughout  the  state 144 

The  codification  of  laws  for  the  administration  of  public  education 

in  city'  school  districts 144 

Provisions  for  a  permanent  and  continuing  census 144 

Provision  for  more  adequate  record  and  report  of  school  finances..  144 

Part   IV — Organization   for  administration  of   state   institutions   for   the 

care  of  delinquents,   defectives  and  dependents 145 

Financial    support    of    state    institutions 146 

Summary  of  existing  organization  and  exercise  of  state  authority..  146 

Penal   institutions    146 

State  superintendent  of  prisons 147 

State  commission  of  prisons 147 

Commission  on  new  prisons 147 

The  state  board  of  classification 147 

Board  of  parole  of  state  prisons 148 

Board  of  examiners  of  feeble-minded  criminals  and  other  defectives.  148 

Prison  association  of   New  York 148 

Charitable  institutions   and   reformatories 148 

The  state  board  of  charities 149 

Fiscal  supervisor  of  state  charities 149 

Building  improvement  commission 150 

Salary  classification  commission 150 

State    charities    aid    association 150 

Commission   on  sites,  grounds,   and   buildings 150 

Joint  purchasing  committee 151 

State  hospitals  for  the  insane 151 

State  hospital  commission 151 

State  supervisory  control  common  to  all  institutions 152 

General  characterization  of  existing  machinery ." 153 

Division  of  authority 154 

Duplication  of  inspection 155 

Inadequate  ppwers    157 

Part  V — Organization  for  the  administration  of  public  health  functions.  158 

General   description   of    functions 158 

Present  organizations  for  carrying  on  health  functions : 

Department  of  health 158 

State  department  of  agriculture 159 

Lack  of  correlation  of  health  functions 162 

Need  for  closer  relation  of  legislative  council  to  executives 165 

Economy    through    better    organization 166 

Indeterminate  tenure  of  office  desirable 166 

Part  VI — Organization  for  the  administration  of  state  activities  having 

to  do  with  industrial  relations 167 

Scope  of  state  function  of  regulation  of  industrial  relations 167 

Existing  state  organization 168 

The  industrial  board 169 

Mercantile   establishments    170 

Home  work   1' 1 

xi 


OUTLINE   OF   CONTENTS 


PAGE 

Chapter  XII — Continued 
Part  VI — Continued 

Workmen's  compensation  172 

Duplication  of  inspection  and  work 174 

Inadequate  machinery  and  powers  of  existing  agencies 175 

Part  VII — Organization  for  administration  of  public  utilities  regulation  176 

Functions  of  the  public  service  commission,  first  district 176 

Functions  of  public  service  commission,  second  district 177 

Common  powers   exercised 1 77 

Critical  appraisal  of  the  organization  and  present  method  of  regu- 
lating public  utilities 177 

Lack  of  means  for  locating  and  enforcing  executive  responsibility  177 

A  question  of  geographic  distribution 178 

Two  distinct  problems  of  utilities  regulation  not  recognized  by 

the  present  law 178 

The  state  should  not  construct  city  owned  subways 179 

Two    commissions    unnecessary 180 

No  control  over  inland  waterways 180 

Part  VIII — Organization  for  the  regulation  of  banking  and  insurance..  181 

Functions    of    the    banking    department 181 

Functions  of  the  insurance  department 181 

Defects  in  organization  for  purposes  of  administration 182 

Chapter  XIII — The  Content  and  Form  of  the  Constitution 183 

The  notion  that  the  constitution  is  fundamental 183 

The  American  notion  of  the  constitution 183 

No  difference  in  sanction  of  early  constitutions 184 

Difference  in  sanction  later  introduced 184 

Recent  abandonment  of  difference  of  sanction  for  statute  and  constitu- 
tional law  by  some  states 185 

The  idea  of  the  difference  in  the  nature  of  constitutional  and  statute  law 

generally  abandoned   185 

Causes  for  the  change  in  the  content  of  constitutions 186 

Distrust  of  the  legislature  and  search  for  responsibility 186 

The  time  for  a  fundamental  change  has  arrived 187 

The  constitution  should  contain  only  the  great  underlying  principles  of 

the  provisions  for  government 188 

Three  expedients  for  simplifying  the  constitution 188 

Application  of  a  more  difficult  amendment  process  to  the  fundamental 

parts  of  the  constitution 189 

The  form  of  the  constitution 189 

Appendix  :    The  Constitution  of  1894  Rearranged  and  Annot.a.ted 192 


CHAPTER   I 
INTRODUCTION    AND    SUMMARY 

In  co-operation  with  the  state  department  of  efficiency  and  economy, 
the  Bureau  of  Municipal  Research  prepared  and  pubhshed  for  the  con- 
stitutional convention  a  volume  entitled  "  Government  of  the  State  of 
New  York — Organization  and  Functions."  This  work,  with  the  exception 
of  a  brief  prefatory  note  written  by  the  commissioner,  was  purely  descrip- 
tive in  character.  The  report  was  designed  to  present  an  accurate  picture 
of  each  department,  office  and  commission  of  the  state  government  as  it 
existed  January  1,  1915.  One  reason  for  making  this  report  entirely 
descriptive  was  to  avoid  controversy  and  misunderstanding  as  to  the  facts. 
Another  reason  was  that  each  of  the  agencies  co-operating  in  preparation 
of  the  fact-report  might  draw  different  critical  and  constructive  con- 
clusions. 

On  the  publication  of  this  volume,  the  Bureau  of  Municipal  Research 
was  requested  to  make  available  to  the  convention  an  appraisal  of  the 
system  of  government  described  in  the  fact-report.  In  the  chapters 
which  follow  are  the  conclusions  reached.  Detailed  constructive  recom- 
mendations are  not  included  for  the  reason  that  the  constitutional  con- 
vention commission  was  of  the  opinion  that  such  of  these  as  the  Bureau 
might  wish  to  propose  should  be  submitted  directly  to  committees. 

In  preparing  this  appraisal  of  the  existing  constitution  and  govern- 
ment the  Bureau  does  not  presume  to  speak  merely  on  its  own  authority. 
For  this  reason  it  is  thought  desirable  at  the  beginning  to  state  frankly 
and  fully  what  standards  were  used  as  a  basis  for  judgment.  The  first 
chapter  following  this  introduction  contains  such  a  statement.  The  stand- 
ards given  have  not  been  selected  from  abstract  considerations,  but  are 
thought  to  be  those  generally  accepted  by  managers  of  enterprises, 
public  and  private,  on  the  strength  of  experience  and  observation.  They 
represent,  so  far  as  can  be  judged,  rules  of  appraisement  founded  on 
common  sense  in  the  conduct  of  business  enterprises  and  the  experi- 
ence of  this  and  other  countries  in  their  efforts  to  develop  democratic 
and  efficient  government.  In  so  far  as  they  are  not  to  be  accepted  as  a 
basis  for  criticism,  they  are  open  to  attack,  and  are  separately  stated  for 
this  reason.  Briefly  characterizing  the  assumptions  which  are  used 
as  a  basis  for  criticism,  it  is  held :  that  proper  machinery  must  be  set  up 
so  that  the  opinions  of  the  people  mav  be  brought  to  bear  immediately  and 
directly  on  the  agents  of  government  through  action  at  electioiis ;  that 
jnachinery  must  also  be  set  up  for  making  executive  officers  responsible 
and  responsive  to  public  opinion;  that  the  only  way  which  has  been 

1 


CONSTITVT'l&K    AND    GOVERNMENT    OF    THE    STATE 


found  for  doing  this  as  a  matter  of  experience  is  to  provide  for  respon- 
sible leadershi2^  i.  c,  to  make  it  the  duty  of  the  executive  definitely  to 
formulate  plans  and_proposals  tor_iegislative  acdop,  and  not  to  permit 
him  to  dodge  responsibility  by  submitting  a  general  lecture  on  political 
prmciples  or  public  morals;  that  by  requiring  the  executive  to  take  the 
imtiative~m  matIer"s~whicirVitally  affect  administration ^  ^refusal  to  gr^nt 
his  requests,  and  in  the  form  submitted^  will  raise  a  clear-cut  issue  thajlbe 
people  can  understand ;  that  such  leadershipis  essential  to  responsible 
governmentr"andr  such  definition  of  issues  is  essential  to  democracy 
rtself — the  only  alternative  being  irresponsible  government  and  domina- 
tion by  a  ^porilical  bossT' 

Starting  from  these  general  assumptions  or  principles,  it  is  urged 
that  the  activities  of  the  legislature  should  be  directed  primarily  tn  tJie 
determination  of  large  state-wide  policies  and  scrutinv  of  administration, 
rather  than  to  the  initiation  nf  evervthing  large  and  sma^ — doing,  its 
business  largely  in  committee  rooms  behind  closed  doors,  and  accom£lish- 
ingf  its  ends  Lliioupli  ilieLBocIs  of  "  log-roll iiig."  Nothing  could  be  more 
helpless  than  a  democracy  with  a  representative  government  without  any 
kind  of  a  leader.  It  has  been  due  to  the  fact  that  the  "  boss  "  has 
rendered  just  this  kind  of  a  service  that  he  has  been  developed.  He  is 
the  product  of  the  American  way  of  handling  public  affairs. 

In  application  of  these  standards  to  a  critical  appreciation  of  the 
government  of  New  York,  the  following  points  are  developed: 

1.  That  American  state  government,  in  its  essential  principles,  was 
not  originally  designed  for  efficient,  constructive  public  work,  but  was  the 
product  of  temporary  and  peculiar  conditions  growing  out  of  the  revolt 
against  Great  Britain.  In  their  natural  antipathy  to  leadership  by  a  royal 
agent,  the  revolutionists  rejected  leadership  altogether.  In  their  fear  of  the 
British  crown  and  the  royal  governor  they  came  to  fear  all  power,  even 
if  exercised  by  their  own  agents.  Instead  of  making  the  executive 
authority  responsible,  therefore,  they  shackled  it.  Knowing  that  royal 
agents  could  not  be  entrusted  with  authority,  they  came  to  the  conclusion 
that  no  one  could  be  entrusted  with  authority.  Their  ideal  of  govern- 
ment was  a  negative  one  and  in  seeking  after  a  government  powerless 
to  do  harm  they  set  up  one  weak  in  power  for  good.  This  principle  of 
negation,  of  preventing  evil  by  dividing  the  powers  of  government  into 
numerous  parts  is  the  chief  source  of  the  wastefulness,  irresponsibility, 
and  inefficiency  which  characterize  the  present  system  of  government. 

2.  In  considering  the  organization  of  the  electorate,  the  view  is 
here  taken  that  the  effective  fmiction  of  the  electorate  is  the  approval 
or"  rejection  of_policies_-4:elative  to  things  done  by  the  government  or 
proposed  to  be  done  by  the  government ;  that  leadership  is  essential  to 
the  jonmi^tir'^  pf  it;Qiip<^ ;  q.nd  that  such  leadership  can  only  be  responsible 


INTRODUCTION    AND    SUMMARY 


when  it  is  made  official  and  vested  in  those  who  are  or  may  be  charged 
with  the  actual  conduct  of  public  business.  The  provisions  relative  to 
an  electorate  are  therefore  not  complete  unless  they  surround  it  with 
conditions  favorable  to  the  effective  exercise  of  its  natural  functions. 

3.  In  the  search  for  responsiveness  and  a  means  of  locating  and  en- 
forcing responsibility  in  the  government,  innumerable  expedients,  checks 
and  counterweights,  have  been  devised,  most  of  which  throw  upon  the 
electorate  an  increasing  burden  and  fail  to  reduce  the  waste  and  confusion 
in  the  government.  They  are  negative  and  not  positive  in  their  operation. 
Except  in  cities,  nearly  every  new  device  is  a  plan  to  prevent  some  one 
from  doing  evil,  not  an  institution  for  vesting  in  designated  authorities 
powers  for  good  equal  to  their  responsibility  for  good,  supplemented  by 
the  well  known  methods  for  enforcing  this  responsibility. 

4.  In  the  establishment  of  the  conditions  surrounding  the  election, 
appointment,   promotion,   remuneration,  and   removal   of   public   officers, 

the  same  principle  of  negation  has  largely  obtained.     The  so-called  merir''Tl-^ 
system  of  civil-service  reform  originated  in  a  laudable  effort  to  abolisJi      1   \ 
"  the  spoils  system,"  and  the  problem  of  the  proper  conditions  of  public      \    \ 
employment  from  the  point  of  view  of  efficient  service  to  the  state  and       \    \ 
justice  to  the  employees  has  never  received  the  serious  consideration  of  \j-^ 
any  constitution  or  law  making  body.  "^ 

5.  In  organizing  the  legislative  body  the  principle  of  the  representa-  \J[r 
tion  of  geographical  districts,  which  was  equitable  enough  in  a  time  when 
rural  communities  and  towns  were  fairly  equal  in  population  and  pos-     j 
sessed  of  substantially  identical  interests,  has  obtained  to-day  to  vitiate 
the  very  essence  of  representation,  namely,  the  accurate  reflection  of  the 
will  of  all  important  groups  of  people  in  a  highly  complex  society.    The 
results  are  localism  in  politics — not  the  representation  of  state-wide  inter- 
ests  whicIToverreap  county  and  city  boundaries — and  the  persistent  use      j 
of  the  gerrymander  to  destroy  accurate  representation  wherever  possible,     j 
Thus  it  happens  that  legislators  are  burdened  with  petty  trading  in  local 
favors,  the  chief  negotiator— the  state  "  boss  " —  receiving  the  highest 
rewards. 

6.  Originally  the  legislature  of  two  chambers  represented  divergent 

class  interests.     Now  it  does  not.     Question  is  raised  as  to  whether  the    \  ^  a^ 
dual    arrangement    now    serves    any    other    than    a  negative    purpose—        J 
whether  its  chief  justification  is  not  the  lack  of  provision  for  leadership      ' 
and  for  locating  and  enforcing  responsiveness  and  responsibility  against 
representative,    as    well    as    executive,    officers ;    whether    it    does    not 
operate  to  intensify   friction,  waste  and  confusion  of   responsibility  in 
the  government.     It  is  pointedly  urged  that  the  two  chamber  legislature 
has  been  abandoned  in  nearly  all  of  the  greatest  cities  of  the  country  in 
the  name  of  efficiency  and  democracy;  and  that  it  is  destined  to  disap- 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 


pear  from  the  state  governments  just  so  soon  as  the  problem  of  constitu- 
tion making  has  been  approached  by  the  people  with  enough  seriousness 
of  purpose  to  demand  that  the  representative  branch  be  used  as  a  means 
of  establishing  and  enforcing  responsibility  instead  of  confusing  it  and 
compelling  the  people  to  look  to  an  irresponsible  "  boss  "  for  protection. 

7.  The  constitutional  relations  now  established  between  the  execu- 
tive and  the  legislature  have  been  successful  in  producing  innumerable, 
fruitless  conflicts,  with  an  occasional  good  result  as  an  accidental  by- 
product. They  are  not  of  such  a  character  as  to  enable  either  branch 
of  the  government  to  bring  any  issue  to  a  positive  outcome.  The  execu- 
tive has  large  negative  responsibilities  in  finances,  but  no  positive  author- 
ity commensurate  with  them.  The  legislature  on  the  other  hand  can  con- 
stantly interfere  with  the  minutest  details  of  administration  without 
assuming  any  open  responsibility  for  its  success.  The  two  departments 
may  wrangle  for  months  over  the  highly  important  question  of  which 
one  has  the  support  of  the  people  without  any  chance  being  given  to  the 
voters  to  decide  what  only  they  can  decide..  In  this  tangle  of  contra- 
dictions all  consistency  and  harmony  would  entirely  disappear  if  it  were 
not  for  the  unofficial  leader  who  holds  the  disjoined  machine  together 
by  methods  all  his  own. 

8.  The  chaos  that  characterizes  the  general  structure  of  the  gov- 
ernment runs  through  the  executive  department  and  all  of  its  ramifica- 
tions. The  governor  is  given  the  executive  power  in  name  only,  for  many 
important  executive  divisions  are  entirely  out  of  his  control  or  at  best  only 
partly  under  it.  In  the^rst  place,  there  is  a  number  of  executive  officers 
who  are  elected  by  popular  vote  and  are  entirely  independent  in  the 
exercFse  of  powers  that  are  not  independent  in  their  nature.  In  deter- 
mriiitfg  what  officers  should  be  elected  and  what  appointed,  "the  constitu- 
tion shows  no  consistency  or  adherence  to  principle.  In  the  second  place> 
where  appointment  is  the  method  of  selection  fixed  by  law,  there  are 
usually  such  variations  in  the  exercise  of  the  appointive  power  that  it  is 
beyond  the  ability  of  anyone  to  find  or  define  responsibility  for  adminis- 
tration in  its  entirety.  The  legislature  has  completed  the  confusion  intro- 
duced  by  the  constitution  by  the  creation  of  a  tangle  of  boards,  com- 
missions, and  hidependent  and  practically  irremovable  officers,  so  that  the 
g'overnor  is  in  fact  stripped  of  real  executive  control  over  those  who  are 
regarded  by  popular  opinion  as  his  subordinates.  In  the  third  place,  the 
administrative  system,  while  depriving  the  governor  of  many  of  the 
powers  essential  to  genuine  leadership  and  responsibility,  heaps  upon  him 
innumerable  petty  duties  in  relation  to  minor  officers  and  divisions,  which 
consume  in  trivialities  the  time  that  should  be  given  to  supervision  of 
really  important  matters.  In  the  fourth  place,  there  is  no  grouping  of 
the  activities  and  functions  of  government,  with  a  view  to  bringing  under 
common  executive  consideration  interrelated  questions  and  problems  of 

4 


INTRODUCTION    AND    SUMMARY 


management.  The  result  is  that  the  service  is  made  less  efficient,  and 
the  governor  is  put  to  the  further  disadvantage  of  dealing  separately  with 
169  different  independent  units. 

It  is  clear  that  the  problem  presented  here  involves  more  than  a 
mere  readjustment  of  parts — a  rearrangement  of  powers  and 
partments,  bureaus,  and  divisions  of  the  administration.  In  fact 
to  the  very  root  of  the  whole  system  of  government.  Responsiveness 
and  responsibility  for  economy  and  efficiency  cannot  be  secured  by  ad- 
ministrative  alterations  alon"e^  i  hey  can  only  be  ol:)tained  TTy  a  lunda- 
liTental  reaTljUSlmeiTE  ot  the  relations  between  the  legislature  and  the 
goverlior  on  t"he  one  hand  and  between  the  governor  and  tTTe  adiiiiiiis- 
trative  officers  on  the  otheT — by  making  such  constitutional  changes  as 
wHlassure  responsibility  and  responsiveness  inthe  government  as  a 
whole,  constant  and  informed  criticism  and  scrutiny  within  and  without," 
official  leadership  in  the  formulation  of  policies,  and  the  COllceiUfation'of 
public  opinion  at  elections  on  work  of  the  government  already  done  or 
omitted  and  work  proposed  for  the  future.  Such  is  the  burden  of  the 
argument  which  is  supported  in  the  following  pages  by  reference  to  the 
concrete  facts  of  New  York  state  government. 


than  a    j 

it  goes    I  VV 


CHAPTER  II 

STANDARDS  FOR  THE  APPRAISEMENT  OF  THE  PRESENT 
CONSTITUTION  AND  GOVERNMENT 

There  is  one  principle  that  is  fundamental  to  the  political  thought 
and  action  of  every  democratic  commonwealth,  namely,  that  the  public 
business  shall  be  managed  as  a  trust.  Representative  government  is  the 
institutional  form  in  which  this  principle  is  expressed — the  representative 
character  being  adopted  for  the  purpose  of  assuring  the  governed  that 
powers  shall  be  exercised  and  properties  and  funds  shall  be  used  for  the 
common  good. 

Government  Established  for  the  Governed 

A  written  constitution  is  a  sovereign  prescription  or  grant  in  the 
nature  of  charter  of  incorporation — a  body  of  laws  which  are  accepted  as 
the  rules  that  shall  govern  the  government,  and  which  in  terms  set  forth 
the  delegation  of  authority  to  persons  who  thereby  are  recognised  as  of- 
ficial trustees,  and  describe  the  conditions  or  limitations  of  their  steward- 
ship. Like  other  institutions  and  instruments,  governments  get  out  of 
adjustment.  It  has  been  for  the  purpose  of  providing  an  orderly  method 
of  finding  out  what  changes  are  desired  in  organization,  in  personnel,  and 
in  institutional  relations  that  "  electorates,"  "  representatives  "  and  "  con- 
stitutional conventions  "  are  provided  for.  Every  consideration  involved 
in  the  amendment  of  constitutions  has  had  to  do  with  the  better  adaptation 
of  institutional  means  to  end — the  end  being  government  for  the  benefit 
of  the  governed. 

Requirements  of  a  Representative  System 

The  institutional  requirements  to  be  conserved  by  the  constitution 
may  be  simply  stated.  With  a  view  to  carrying  out  the  principle  that  "  a 
public  office  is  a  public  trust,"  it  is  commonly  accepted  (both  as  a  basis  for 
critical  review  of  what  is  and  as  a  basis  for  considering  the  advantage  of 
constructive  proposals)  that  the  government  must  be  "  responsive  "  to  the 
will  of  the  governed,  and  that  officers  as  agents  or  managers  of  the  public 
trust  shall  be  held  "  responsible  "  for  their  acts.  Nor  is  the  citizenship, 
to  whom  proposals  for  constitutional  amendments  must  be  submitted, 
without  ample  experience  for  intelligent  judgment  as  to  what  expedients 
are  adapted  to  making  government  "  responsive "  and  ''  responsible.'' 
Citizens  have  become  familiar  with  these  expedients  in  their  contact  with 
everyday  affairs. 


STANDARDS    FOR    APPRAISEMENT 


Expedients  Adopted  to  Make  Private  Management  "  Responsive "  and 
"  Responsible  " 

Like  representative  government,  an  ordinary  joint  stock  company  is 
an  incorporated  trusteeship  in  which  many  are  interested.  The  demand 
made  of  officers  is  that  the  management  shall  be  "  responsive "  and 
"  responsible."  The  essentials  among  all  the  expedients  that  have  been 
adopted  to  make  the  administration  of  corporate  trusteeships  responsive 
and  responsible  to  the  beneficiaries  or  members  are  these : 

1.  The  selection  of  a  person  or  persons  as  executor  of  the  trust, 

usually  called  the  "  executive"  whb  is  charged  with  the 
duty  of  carrying  on  the  business  authorized. 

2.  The   selection   of   "  representatives"   usually   called   trustees, 

who  are  charged  with  the  duty  of  meeting  as  a  body  or 
board  to  review^ the  acts  and  proposals  of  the  "  execu- 
tive "  and  approve  or  disapproye  of  them. 

3.  Provision  for  obtaining  reliable  information  needed  to  keep 

the  representatives  and  members  advised  about  what  is 
being  done  by  the  "  executive." 

4.  Provision   for  developing  a  faithful  and  efficient  personnel 

with  which  to  carry  on  the  business  and  for  retaining  it 
in  the  enterprise. 

5.  Provision  for  the  prompt  dismissal  of  the  personnel  that  is 

unfaithful  and  unfit,  and  for  the  prompt  retirement  of 
the  "  executive  "  officers  who  do  not  retain  the  confi- 
dence and  support  of  a  majority  of  members  as  ex- 
pressed by  an  "  electorate  "  or  through  "  representatives." 

These  may  be  regarded  as  underlying  principles  governing  all  the 
personal  and  organic  relations  of  institutions  with  which  citizens  are 
familiar — the  results  of  experience  gained  in  efforts  to  make  management 
of  trusts  responsible. 

The  Meaning  of  Executive  Responsibility 

The  meaning  of  "  executive "  responsibility  is  quite  as  generally 
understood  as  are  the  requirements  of  trusteeship.  In  the  common 
affairs  of  life,  and  in  private  corporate  practice,  executive  responsibility 
means : 

1.     Responsibility  for  leadership,  i.  e.,  for  initiative  in,  the  prepara- 
tion  and  submission  of  plans  for  approval  by  the  board 
and  for  direction  and  cqntml -QYex,.the..execution  of  plans, 
after  they  "fiave^been  approved. 

3.     Responsibility  for  results^  i.  e.j  ior  efficiency  in  management 
and  for  economy  in  the  use  of  mere  material  and  funds. 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Relation  of  Executive  to  Administration 

This  means  that  the  "  executive  "  is  looked  to  as  the  one  to  come 
before  the  board  or  body  of  "  representatives  "  at  stated  times,  and  tell 
them  what  has  been  done  since  the  last  meeting,  and  what  is  proposed  for 
the  future^and,  in  order  that  this  requirement  may  be  enforced,  authority 
to  proceed  beyond  a  fixed  date  is  withheld  from  the  "  executive,"  i.  e., 
action  by  him  is  made  contingent  on  approval  or  affirmative  action  by  the 
board  or  "  representatives  "  of  the  members.  The_methods  of  financing 
are  subject  to  board  control,  though  the  execution  of  authorizations  to 
raise  and  spend  money  js  left  to  the  "  executiye. "  Conditions~governing 
management  and~empIoyment,  such  as  the  organization  of  departments  and 
divisions  of  work,  salaries  to  be  paid,  etc.,  are  made  the  subject  of  board 
action,  though  responsibility  for  directing  the  execution  of  plans  and  for 
the  honesty  and  qualifications  of  the  personnel  is  left  with  the  executive. 
To  fix  responsibility  for  management  and  to  make  it  enforceable,  the  exec- 
utive is  to  decide  what  devices  shall  be  used,  who  shall  be  appointed  or 
employed,  subject  to  these  conditions.  The  one  who  must  be  held  ac- 
countable for  getting  things  done— the  one  who  must  determine  fitness 
and  merit — the  one  who  must  devise  and  install  methods  for 
bringing  acts  of  disloyalty  and  personal  disqualification  to  official  atten- 
tion, is  the  executive.  The  executive  must  administer  discipline ;  he  must 
.issue  orders  and  provide  the  means  for  knowing  how  orders  are  carried 
out ;  he  is  the  one  who  is  held  responsible  for  results. 

Relations  of  the  Board  of  "Representatives"  to  Administration 

Responsibility  for  honesty,  efiiciency  and  economy  is  definitely 
located  by  holding  the  "  executive  "  to  account  for  devising  and  install- 
ing tests  which  will  enable  him  promptly  to  discover  and  correct  infidelity, 
inefficiency,  and  waste,  so  far  as  this  may  be  done  by  the  executive  alone, 
and  for  bringing  to  the  attention  of  "  representatives  "  and  "  members  " 
conditions  unfavorable  to  good  management  over  which  he  has  no  con- 
trol. By  making  the  executive  responsible  for  leadership,  for  the  honesty 
and  qualifications  of  the  personnel  of  administration,  and  for  efficiency 
and  economy  as  measured  by  results,  each  official  "  representative  "  in 
turn  is  held  accountable  by  members  for  supporting  the  executive  when 
he  is  deemed  to  be  right,  or  for  opposing  him  when  he  is  deemed  to  be 
wrong.  In  fact,  supporting  or  opposing  the  executive  in  all  matters  that 
may  be  proposed  by  him  is  the  chief  function  and  purpose  of  "  repre- 
sentatives." 

Means  for  Keeping  "Representatives"  and  "Members"  Informed 

It  is  essential  to  responsible^  administration  that  some  means  be 
devised  for  keeping  "  representatives  "  and  beneficiaries  informed  a_bout 


STANDARDS    FOR    APPRAISEMENT 


what  is  proposed, jan^-^h^L-js  being  done.  The  practice  of  withholding 
authority  until  proposals  have  been  explained  by  the  "  executive  "  and 
past  acts  have  been  reviewed,  has  already  been  noted.  In  aid  of  this 
method,  definite  reporting  dates  may  be  prescribed  and  even  the  form  in 
which  proposals  and  accounts  shall  be  submitted  may  be  laid  down  in 
the  charter  or  otherwise.  Other  expedients  are  also  provided  for  supple- 
menting these  requirements,  such  as,  the  appointment  of  an  independent 
<Ji< auditor;  giving  to  representatives  the  right  of  interpellation;  giving  to 
members  and  representatives  the  right  of  access  to  public  records ;  pro- 
viding for  publicity  and  discussion  of  all  matters  bearing  on  the 
management. 

An  Independent  Auditor 

One  of  the  most  effective  means  devised  for  keeping  "  representa- 
tives "  and  members  informed  about  the  current  details  of  management 
is  the  election  or  appointment  of  an  officer  whose  duty  it  is  to  prepare  an 
independent  statement  of  facts  to  be  laid  before  both  the  board  and  the 
membership,  as  a  basis  for  judgment  concerning  any  matters  that  may  be 
the  subject  of  controversy.  Thus  the  English  Corporation  Law  (The 
Companies  Clauses  Act)  provides  that  the  shareholders  at  their  annual 
meeting  shall  select  an  auditor  who  shall  have  the  right  of  access  to  all 
])apers,  records  and  vouchers.  This  "  auditor "  is  required  to  report 
independently  to  representatives  and  to  members  on  the  conditions,  trans- 
actions and  results  found,  being  held  civilly  and  criminally  liable  for  mis- 
statement of  fact ;  and  in  case  the  shareholders  may  neglect  to  appoint 
or  elect  an  auditor,  the  government,  through  the  board  of  trade  in 
London,  may  do  so  on  application  of  members  who  may  constitute  the 
minority.  With  a  view  to  qualifying  the  "  auditor  "  for  having  a  detached 
independent  view,  it  is  made  a  condition  precedent  that  he  shall  not  be  a 
trustee  or  officer  or  otherwise  officially  connected  with  the  administration. 
This  is  a  democratic  method  of  corporate  control.  It  is  also  positive  in 
its  action,  as  it  is  a  means  for  using  the  existing  machine  of  the  cor- 
poration to  develop  the  personnel  of  management  and  make  it  more 
eft'ective.  In  Germany,  France,  and  the  United  States,  legal  provision 
has  been  made  to  prevent  fraud,  and  violations  of  law.  This  is  autocratic 
and  paternalistic  on  the  part  of  the  government.  It  is  negative  in  its  ac- 
tion, as  it  employs  outside  agencies  of  official  "  examination  "  and  "  regu- 
lation." The  purpose  of  both  methods,  however,  is  to  provide  means  for 
exercising  control  over  the  management. 

LTnder  the  English  system,  and  in  this  country  where  shareholders 
have  adopted  the  English  method  as  a  matter  of  self-interest,  though 
not  required  by  law,  the  independent  auditor  has  had  no  responsibility 
for  management ;  his  only  duty  has  been  that  of  reporting  accurately  the 


CONSTITUTION   AND    GOVERNMENT   OF    THE    STATE 

transactions  and  results  of  the  management.  He  is  constituted  a  staff 
agent  of  the  membership,  the  primary  purpose  being  to  establish  the  fact 
of  honesty  and  to  give  the  manager  the  means  of  having  efficiency  and 
"e^momyT)rought  to  the  attention  of  members  by  someone  who  has  no 
official  functions  to  perform,  other  than  to  supply  the  evidence  of  dis- 
honesty, inefficiency  and  waste,  if  any  is  found. 

The  Right  of  Interpellation  and  Personal  Inquiry  ^^ 

Another  effective  means  for  developing  information  about  per- 
formances and  proposals  of  the  "  executive  "  is  to  require  him  personally 
to  appear  before  the  board  at  its  meetings  and  answer  questions.  Thj? 
has  the  effect  of  keeping  the  executive  in  a  condition  of  preparedness. 
Knowing  that  this  is  a  condition  to  sustain,  great  care  must  be  taken 
at  all  times  to  have  every  proposal  fully  considered  and  supported  by 
statements  of  fact  and  reasons  that  are  convincing  to  the  beneficiaries 
of  the  undertaking  as  well  as  to  their  representatives  on  the  board. 

Access  of  "Representatives"  and  "Members"  to  Records 

As  a  matter  of  common  law  resting  on  common  experience,  pro- 
vision is  made  for  access  to  records  by  beneficiaries,  under  prescribed 
rules  and  by  the  regular  representatives  at  all  times.  Their  right  of 
access,  together  with  their  right  of  personal  inquiry,  criticism  and  oppo- 
sition, has  been  utilized  and  made  effective  through  the  appointment  of 
regular  and  special  committees  of  the  board,  whose  duty  it  is  to  go  into 
designated  subjects  and  to  report  on  conditions  and  results.  They  con- 
stitute specialized  advisory  committees  who  in  turn  may  employ  such 
independent  staff  agents  to  assist  them  as  may  be  desired. 

Provisions  for  Publicity  and  Discussion 

The  auditor,  the  right  exercised  by  "  representatives  "  of  interpellating 
and  making  inquiry  of  the  "  executive  "  at  board  meetings,  the  right  of 
inquiry  by  committees  of  shareholders,  and  the  standing  and  special 
committees  of  the  board,  these  are  expedients  for  developing  information 
but  not  necessarily  for  publicity.  The  holding  of  meetings  at  which 
all  members  are  privileged  to  attend,  requirements  that  minutes  of  meet- 
ings shall  be  kept  and  made  available  to  members,  regulations  calling  for 
the  publication  of  reports  by  the  executive  branch,  the  publication  of  re- 
ports by  the  auditor  certifying  to  conditions  and  results,  are  among  the 
prescriptions  that  are  commonly  employed  to  carry  executive  responsi- 
bility home  to  those  who  may  exercise  powers  of  control. 

Positive  Provision  for  Making  Management  Effective 

From  the  viewpoint  of  the  manager,  however,  provisfons  for  a 
"  representative  "  body,  for  an  "  auditor,"  for  "  committees,"  for  "  pub- 

10 


STANDARDS    FOR    APPRAISEMENT 


licity  "  are  negative  in  their  operation.  Positive  provision  is  made  for 
the  development  of  leadership  and  for  building  up  an  efficient  service  by 
giving  to  th^  executive  th^  authority  to  employan  orga.nj^atiou^.:\vhicb-is 
•adapted  to  the_expert  handling  of  the  business  both  in  planning  and  in 
the  execution  of  plans. 


Adoption  of  Means  of  Obtaining  and  Retaining  a  Faithful  and  Efficient 
Personnel 

One  of  the  essentials  of  institutional  success  is  a  loyal  personnel ; 
another  essential  is  the  development  and  retention  of  a  personnel  able 
to  perform  efficiently  the  tasks  assigned.  The  personal  equation  in  a 
private  corporation  as  well  as  a  government  is  one  that  too  often  has 
been  lost  sight  of  and  the  various  devices  for  seeking  out  persons 
qualified  and  for  building  up  the  esprit  de  corps  are  matters  of  increasing 
concern  to  managers  as  well  as  of  increasing  interest  to  those  who  are 
keeping  in  elbow  touch  with  institutional  methods.  In  enterprises  of 
large  proportions  whose  activities  are  varied  and  widely  scattered  the 
employment  office,  and  what  has  come  to  be  known  as  the  "  welfare  " 
department,  are  the  arms  of  the  service  whose  business  it  is  to  deal 
with  the  human  side  of  the  personal  equation,  while  the  officials  in 
charge  of  work  departments  are  charged  with  responsibility  for  the 
utilization  of  individuals  for  getting  group  results.  What  the  purchas- 
ing agent  and  the  storekeeper  and  custodian  are  to  the  material  side  of 
the  enterprise  the  employment  office  and  "  welfare  "  department  are  to 
the  personnel.  Their  function  is  a  staff  performance,  the  purpose  of 
which  is  to  inquire  carefully  into  the  qualifications  and  fitness  of  per- 
sons seeking  employment,  to  keep  in  touch  with  the  working  conditions 
affecting  health  and  comfort,  to  look  after  training  the  employees,  to 
lay  down  and  supervise  a  system  of  promotions  and  demotions,  to  admin- 
ister rules  governing  veterans  and  pensioners,  and  other  matters  that  make 
the  employment  attractive  to  new  recruits  and  provide  a  vocation  for  men 
such  as  will  enable  the  corporation  to  retain  the  experience  and  ex- 
pertness  developed  by  it  in  handling  its  problems.  With  those  ends  in 
view,  the  executive  is  given  the  power  of  appointment,  removal  and 
discipline  and  he  is  also  given  advisory  facilities  for  making  his  action 
intelligent  and  just  in  every  matter  pertaining  to  the  employment  and 
welfare  of  subordinates. 

Administrative  Staff  Agencies 

As  a  means  of  enabling  the  chief  executive  and  the  heads  of  depart-) 
ments   to   become  more   effective   in   directing   the   details   of   business,' 
specialized  staff  agencies  for  inspection,  for  legal  advice,  for  the  prepa- 
ration and  consideration  of  budget  proposals,  for  verifying  the  accuracy 


CONSTITUTION    AND    GOVERSMENT    OF    THE    STATE 

of  reports  both  of  custodians  and  of  work  results  have  also  been  de- 
veloped. Staff  agents  are  detached  from  all  administrative  responsibility 
and  left  free  to  make  independent  investigations  into  all  problems  that 
arise  as  to  old  work  or  new  work.  The  line  agents  are  responsible,  ac- 
tive heads  of  departments.  Adequate  "  staff  "  and  *'  line  "  agencies  for  the 
exercise  or  control  over  fidelity,  economy  and  efficiency  by  the  executive 
have  been  found  to  be  essential  to  management  of  large  corporate  business. 
Having  required  the  executive  to  take  the  initiative  in  the  preparation  and 
submission  of  plans  and  proposals,  the  experience  of  all  of  these  agencies 
may  be  brought  into  service,  not  only  for  the  upbuilding  of  the  manage- 
ment, but  for  the  information  of  the  board  and  ultimately  of  the  member- 
ship. The  executive  being  put  in  such  position  that  he  must  defend  both 
results  obtained  and  new  projects  submitted  for  approval,  being  required 
to  meet  and  satisfactorily  answer  adverse  criticism,  or  if  criticism  may  de- 
velop weakness  in  the  original  proposal  being  made,  to  assume  responsi- 
bility for  any  amendments,  no  such  condition  can  obtain  as  irresponsi- 
bility in  the  management  of  affairs.  Either  the  executive  must  be  sup- 
ported by  "  representatives,"  or,  in  the  last  appeal,  by  "  members,"  or  he 
must  retire. 

A  \ 
^    \   Use  of  "  Line  "  and  "  Staff  "  Advisers 

In  a  large  institution,  one  which  is  so  varied  and  complex  in  its 
activities  as  to  require  subdi\ision  into  departments,  provision  is  made 
for  developing  efficiency  in  management  through  "  staff'  "  and  "  line  " 
advisers,  as  explained  above.  In  other  w^ords,  the  executive  as  a 
means  of  protecting  his  responsibility,  may  require  that  the  project  or 
plan  of  a  department  head,  before  it  comes  to  him  for  his  approval,  shall 
have  the  consideration  of  all  related  heads  of  work — officers  who 
may  be  constituted  a  cabinet  or  executive  board ;  and  he  may  also  require 
review  and  report  by  persons  called  a  "  staff  "  who  have  been  detached 
from  administrative  responsibility  for  the  purpose — persons  who  are 
qualified  to  consider  the  particular  problems  or  the  questions  vital  to 
the  proposal.  Having  done  this,  when  the  executive  conies  to  a  decision 
or  goes  before  his  board  with  a  new  work,  project  or  a  plan  of  financing, 
for  the  purpose  of  obtaining  their  approval  as  a  basis  for  executive  action, 
he  will  not  only  understand  what  the  proposal  is,  but  he  will  know  that 
it  has  had  the  best  thought  that  the  most  competent  persons  of  the  entire 
organization  can  give.  -Further  than  this  he  will  know  that  every  ques- 
tion of  difference  in  interest  or  opinion,  which  may  clevelop  between 
heads  of  the  "  line  "  or  between  the  "  line  "  and  the  "  staff' "  has  been 
resolved  in  the  discussion  which  takes  place  before  he  is  required  to 
assume  responsibility  for  presenting  a  proposal  to  the  boafd  for  au- 
thority to  act;  or  if  this  be  not  required,  before  he  issues  an  executive 


STANDARDS    FOR    APPRAISEMENT 


order  for  which  he  will  be  later  held  to  account.  In  this  consideration 
by  the  line  and  staff  advisers,  and  in  discussions  of  dift'erences  before 
the  executive,  every  detail  of  a  proposal  must  of  necessity  be  supported 
by  such  statements  of  fact  as  will  enable  the  executive  later  to  answer 
every  question  or  criticism  that  may  be  raised  by  the  board  or  an  inquiring 
member — if  need  be  by  a  court. 

Prompt  Retirement  of  Officers  zi'lio  Do  Not  Represent  a  Majority 

Provision  for  promptness  in  retiring  an  administration  which  fails 
to  retain  the  support  of  a  majority  not  only  insures  responsiveness,  but 
is  the  means  for  enforcing  official  responsibility.  In  case  the  chief  execu- 
tive is  elected  by  shareholders,  then  when  an  irreconcilable  difference  of 
opinion  on  matters  of  policy  or  administration  develops  between  the 
board  and  the  executive,  the  issue  becomes  clearly  defined  through  in- 
quiries and  discussions  that  take  place  between  the  "  executive  "  and 
"  representatives  "  at  board  meetings  and  it  is  determined  by  ballot 
whether  a  majority  of  representatives  is  for  or  against  each  proposal. 
And  the  statements  of  fact  and  the  arguments  which  are  used  in  support 
of  one  contention  or  the  other,  become  the  property  of  the  membership. 
When,  therefore,  these  issues  go  before  members  at  an  election  to  ascer- 
tain which  faction  or  party  will  be  returned,  both  the  executive  and  the 
board  are  brought  into  harmony  and  made  representative.  In  case  the 
"  executive "  is  appointed  by  the  board,  any  irreconcilable  difference 
between  the  executive  and  a  majority  of  the  board  must  lead  to  the 
resignation  of  the  "  executive." 

Absence  of  "Irresponsible  Boss''  in  the  Administration  of  Private 
Business 
In  any  case  the  only  faction  or  party  which  can  develop  and  com- 
mand any  considerable  attention  or  following  in  a  private  corporate  con- 
troversy over  ofificial  acts  or  matters  of  policy,  is  a  party  in  support  of 
the  executive  or  a  party  which  is  against  him.  When  these  expedients 
adopted  to  make  the  management  of  private  business  responsible  are 
fully  operative,  there  is  no  such  thing  as  an  "  irresponsible  boss."  As  a 
matter  of  organization,  leadership  is  placed  with  a  responsible  executive 
and  leadership  in  the  opposition  when  it  is  supported  by  a  majority  must 
itself  become  responsible  by  accepting  executive  responsibility.  If  the 
opposition  leader  himself  refuses  to  become  the  executive,  when  supported 
by  a  majority  he  either  must  resign  his  leadership  to  the  executive,  or 
the  administration  itself  becomes  irresponsible. 

Conditions   Under   Which  Private  Management  Becomes  Irresponsible 

The  conditions  under  which  private  corporate  management  becomes 

irresponsible  are  conditions  in  which  well-known  expedients  for  making 

13 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

management  responsible  have  not  been  adopted,  or  if  adopted  have  become 
inoperative.  Whenever  the  "  executive  "  is  required  to  assume  responsi- 
bihty  for  leadership,  for  the  honesty  and  qualifications  of  the  personnel, 
and  for  the  efficiency  and  economy  of  management,  as  measured  by  results, 
and  whenever  as  a  means  of  enforcing  this  responsibihty  provision  is 
made  for  independent  audit,  for  the  executive  coming  before  the  board  to 
be  personally  interrogated,  for  independent  and  effective  inquiry  by  mem- 
bership and  board  committees,  for  requiring  representatives  on  the  board 
either  to  support  or  oppose  the  executive  measures,  without  impairing 
executive  responsibility  for  what  is  finally  adopted,  and  for  adequate 
publicity  and  discussion,  the  management  cannot  be  other  than  responsive 
and  responsible  to  the  majority,  as  determined  by  regulations  giving 
voting  power.  The  question  as  to  who  shall  be  empowered  by  charter 
agreement  or  otherwise  qualified  to  express  the  will  of  the  majority  is  a 
matter  that  is  to  be  independently  considered. 

Expedients  Adopted  to  Make  Control  Over  Public  Business 
Effective 

As  has  been  said  by  a  noted  writer  on  constitutional  law,  "  The 
business  of  government,  like  all  other  business,  falls  into  two  great 
divisions — the  determination  of  policy  and  principle,  and  the  working 
out  of  details ;  the  settlement  of  what  is  to  be  done  and  the  doing  of  it." 

Siuiilar  to  Those  Employed  in  Private  Undertakings 

The  expedients  adapted  to  making  control  over  public  business 
effective  are  just  as  w^ell  known  as  are  those  for  making  control  effective 
in  private  affairs.  What  is  worthy  of  note  is  this — that  those  govern- 
ments which  have  been  most  responsive  to  the  people,  and  whose  "  admin- 
istration "  has  been  held  to  most  strict  account,  have  been  those  in  which 
the  best  experience  of  private  business  has  been  most  closely  followed. 
Those  governments  that  have  been  most  responsive  have  been  those 
whose  constitutions  have  provided  for  making  the  legislature  a  body 
that  is  representative  of  constituencies,  and  which  have  provided  for 
prompt  reference  of  all  irreconcilable  differences  between  executive  and 
representative  body  on  matters  of  policy  to  the  "  electorate."  Those 
governments  have  been  most  responsible,  whose  constitutions  have  pro- 
vided for  "  executive "  leadership  by  holding  a  single  executive  to 
account,  both  for  new  requests  and  administrative  results,  and  by  estab- 
lishing a  relation  between  executive  and  representative  body,  which 
requires  the  "  responsible  "  head  of  the  administration  to  keep  behind 
him  a  majority,  the  penalty  for  loss  of  confidence  being  prompt  retire- 
ment from  the  service.  Those  governments  have  been  most  honest, 
which  have  provided  for  the  protection  of  the  personnel  of  the  service 

14 


STANDARDS    FOR    APPRAISEMENT 


who  are  faithful,  by  prompt  disciphne  or  dismissal  of  those  who  are 
unfaithful.  Those  governments  have  been  most  efficient  in  which  the^ 
"  responsible  "  head  of  the  administration  has  been  provided  with  effective 
staff  agencies — a  personnel  detached  from  directing  responsibility — 
which,  with  the  heads  of  departments  {i.  e.,  of  the  "  line  ")  are  organized 
to  consider  and  report  on  results  obtained,  as  well  as  new  plans  sub- 
mitted. _ 

Responsiveness  and  Responsibility  of  Executive 

The  positiveness  with  which  these  expedients  have  acted,  even  where 
the  forms  of  monarchy  have  been  retained,  as  in  Western  Europe,  in  locat- 
ing and  enforcing  responsibility  and  responsiveness  on  the  executive  has 
been  convincing.  For  example,  in  England  and  Italy,  as  well  as 
in  France,  fundamental  democratic  ideals  and  practices  have  been  in- 
corporated and  made  effective  in  government,  although  the  heredi- 
tary monarchs  still  use  the  language  of  absolute  rulers  and  speak 
of  "  my  subject,"  "  my  army,"  "  my  government."  Where  democratic 
ideals  are  most  highly  developed,  the  hereditary  monarch,  if  he  still 
remains,  avoids  all  active  interference  in  politics,  and  as  a  means  of 
providing  for  responsiveness  and  responsibility  a  prime  minister  is  chosen. 
He,  with  the  ministry  organized  by  him,  is  made  responsible  through  the 
representative  body  to  the  electorate.  Even  where  the  monarch  partici- 
pates to  some  extent  in  politics,  he  does  so  more  or  less  under  the  guid- 
ance of  such  ministers  and  subject  to  the  support  of  a  majority.  Thus 
the  immediate  conduct  of  the  details  of  administration  is  vested  in  an 
executive  board  or  directorate,  known  as  the  cabinet.  The  continuance 
of  the  cabinet  in  office  depends,  in  each  case,  upon  their  responsiveness 
to  public  demands,  upon  the  manner  in  which  they  use  their  discretionary 
authority,  upon  the  honesty  and  competency  of  those  whom  they  employ 
to  transact  public  business,  and  upon  the  efficiency  and  economy  with 
which  public  resources  are  used  and  protected. 

The  Mechanism  of  Popular  Control 

Furthermore,  under  these  so-called  monarchies,  the  mechanism  for 
the  exercise  of  popular  control  is  made  just  as  simple  and  direct 
as  in  a  private  corporation.  In  every  instance  this  is  done  through  the 
utilization  of  an  "  electorate  "  and  the  development  of  a  procedure  by 
means  of  which  existing  agencies  of  government  may  be  employed  for 
making  the  political  issues  as  definite  as  the  issues  presented  to  a  jury  in 
courts  of  law.  Agencies  are  also  created  for  presenting  statements  of 
fact  and  arguments  in  support  of  contentions  when  issues  are  joined 
and  a  vote  is  taken,  whether  by  the  representative  body  or  the  electorate. 

15 


CONSTITUTION   AND    GOVERNMENT   OF    THE    STATE 


These  are  methods  with  which  every  man  is  famihar  in  the  conchict  of  liis 
ordinary  corjiorate  affairs. 

Responsibility  for  Leadership 

What  is  worthy  of  special  attention  is  this :  that  in  every  repre- 
sentative government,  whether  repubHcan  or  monarchical  in  form,  where 
devices  have  been  adopted  for  making  government  responsive  and 
responsible,  there  has  been  no  such  thing  as  an  irresponsible  political 
boss.  In  other  words,  constitutional  provision  for  responsible  leadership 
has  been  found  to  be  an  essential  ingredient  of  responsible  government. 
In  every  country  where  responsible  government  obtains,  the  leader  of 
the  ])arty  in  power  necessarily  is  the  one  who  is  made  to  assume  responsi- 
bility for  the  acts  and  proposals  of  the  administration  ;  and  the  leader  of 
the  "  opposition  "  is  made  responsible  just  as  soon  as  he  obtains  the  sup- 
l^ort  of  a  majority,  i.  e.,  when  the  leader  of  the  opposition  succeeds  in 
retiring  a  responsible  executive,  either  he  must  accept  responsibility  for 
the  management,  or  retire  in  favor  of  someone  in  the  opposition  who  will. 


16 


CHAPTER  III 

CONSTITUTIONAL   AND    STATUTORY    PROVISIONS 
GOVERNING    THE    ELECTORATE 

The  constitution  of  the  state  provides  for  two  kinds  of  governing 
agents : 

1.  An  electorate,  i.  e.,  a  personnel  whose  only  official  function  is 

to  register  the  decision  of  the  citizens  on  questions  or 
candidates  brought  before  the  several  constituencies  for 
expression  of  opinion. 

2.  Representatives   and   officers — a  personnel   which   is   charged 

with  the  duties  of  representing  the  electorate  between 
elections,  and  of  conducting  the  business  of  the  state. 

Leading  Constitutional  Questions  Relating  to  Electorate 

The  leading  constitutional  or  legal  questions  relating  to  the  electorate 
therefore  are : 

1.  Who  shall  constitute  the  electorate? 

2.  What  shall  be  the  organization  and  procedure  for  formulating 

and  presenting  issues  and  questions  to  the  electorate  so 
that  they  may  be  understood  and  publicly  discussed  ? 

3.  Wliat  shall  be  the  organization  and  procedure   for  taking  a 

vote — i.  e.,  for  getting  a  true  expression  of  opinion  that 
will  be  binding  on  the  official  personnel  of  the  govern- 
ment ? 

Definition  of  the  Electorate 
The  question  as  to  who  shall  constitute  the  electorate  should  be  a 
matter  of  community  judgment,  founded  upon  considerations  of  expe- 
diency, the  welfare  of  the  state,  the  moral  rights  of  human  beings,  and 
broad  principles  of  democracy.  The  function  of  the  ele£tOPat£.^ing  to 
Register  public  opinion  on  issues  and  on  the  selection  of  persons  for  such 
LS^re  to  be  filled" 


Composition  in  England  After  Magna  Charta 

Historically  the  composition  of  electorates  has  depended  upon  the 
prevailing  judgment  in  each  politically  organized  community  with  respect 
to  the  material  and  moral  capabilities  of  persons  and  their  fitness  to  partici- 

17 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

pate  in  the  exercise  of  control  over  men  and  affairs.  In  England,  after 
Magna  Charta,  the  sovereign  power  was  in  the  hands  of  the  lay  and 
spiritual  baronage  as  great  landlords ;  in  the  thirteenth  century  the  landed 
gentry  and  burgesses  came  to  a  share  in  the  government  as  electors,  and 
in  the  nineteenth  century  the  workingmen  of  the  towns  and  the  agricul- 
tural laborers  were  admitted  to  the  suffrage. 

Who  Constituted  Electorate  in  1777 

At  the  time  of  the  formation  of  the  first  constitution  of  the  state 
of  New  York,  the  landed  proprietors  were  in  an  overwhelming  majority, 
and  the  leaders  among  them  believed  that  the  land  owners  were  "  the 
only  safe  depositaries  of  public  power."  Accordingly  the  first  constitu- 
tion gave  the  freeholders  a  special  weight  in  the  government  by  providing 
that  the  governor,  the  lieutenant  governor,  and  the  senators  should  be 
chosen  by  freeholders,  the  last  named  group  by  freeholders  possessed  of 
freeholds  worth  one  hundred  pounds  over  and  above  all  debts  charged 
thereon.  With  this  material  safeguard  for  the  landed  class  securely 
established,  a  slighter  property  qualification  was  provided  for  voters  for 
members  of  the  assembly,  which  admitted  to  the  suffrage  renters  and 
taxpayers  and  "  freemen  "  of  the  cities  of  New  York  and  Albany. 

Initially,  Electorate  a  Small  Fraction  of  the  Citizenship 

These  qualifications,  as  slight  as  they  were  for  the  voters  for  assem- 
blymen, excluded  from  the  suffrage  a  considerable  portion  of  the  adult 
males  of  the  state.  How  large  this  portion  was  we  cannot  determine 
from  the  figures  available,  but  we  have  a  reliable  statement  to  the  effect 
that  "  The  census  of  1790  shows  that  out  of  a  population  of  thirty  thou- 
sand in  New  York  City,  there  were  but  1,209  freeholders  of  100  pounds 
or  over,  1,221  of  20  pounds,  and  2,661  '  forty-shilling '  freeholders." 
From  scattered  figures  we  may  conclude  that  about  one-third  of  the 
adult  males  were  excluded  from  all  participation  in  the  state  government, 
even  in  the  election  of  assemblymen,  under  the  constitution  of  1777.  It 
is  estimated  on  the  basis  of  a  careful  study  that  not  more  than  150,000 
out  of  approximately  600,000  adult  males  or  about  four  per  cent,  of  the 
entire  white  population  of  the  United  States  took  part  in  the  elections  at 
which  were  chosen  the  members  of  the  state  conventions  which  ratified 
the  federal  constitution  in  1787-1789. 

Subsequent  Enlargement  of  Electorate 

Gradually  the  qualifications  and  limitations  on  the  electorate  were 
changed  in  response  to  public  opinion  and  to  altered  conditions  of  social 
life.  By  the  constitution  of  1821,  the  special  safeguards  for  landed  prop- 
erty in  the  election  of  governor  and  assemblymen  were  swept  away  and 
the  qualifications   for  voters   for  assemblymen   were  lowered.     By  an 

18 


THE    PROVISIONS    GOVERNING    THE    ELECTORATE 


amendment  of  1826,  all  white  males  who  complied  with  the  resident  re- 
quirements were  empowered  to  vote  for  all  elective  officers,  but  property 
qualifications  were  retained  for  persons  of  color.  The  constitution  of 
1846,  while  continuing  the  adult  white  manhood  suffrage,  left  property 
qualifications  upon  colored  voters  and  these  remained  a  part  of  the  fun- 
damental law  until  after  the  Civil  War. 

Thus  step  by  step  adult  citizen  manhood  suffrage  has  been  estab- 
lished in  New  York.  The  effect  of  this  constitutional  development  is  to 
place  the  voting  power  in  the  hands  of  about  one-fifth  of  the  citizen 
population  or  about  one-sixth  of  the  total  population  of  the  state. 

Controversy  Over  Present  Provisions 

The  provisions  of  the  present  constitution  which  are  subjects  of 
controversy  are  those  which  relate  to  the  exclusion  of  criminals,  public 
charges,  and  women.  With  regard  to  the  first  the  constitution  says  that 
the  legislature  shall  enact  laws  excluding  from  the  right  of  suffrage  all 
persons  convicted  of  bribery  or  any  infamous  crime  and  that  "  no  person 
shall  be  deemed  to  have  gained  or  lost  a  residence,  while  confined  in  any 
public  prison."    There  seems  to  be  no  reason  for  changing  this  provision. 

Public  Charges  Not  Disfranchised 

With  regard  to  public  charges,  the  constitution  does  not  disfranchise 
paupers ;  it  merely  states  that  no  persons  shall  be  deemed  to  have  gained 
or  lost  a  residence  for  the  purpose  of  voting  while  kept  at  any  almshouse 
or  other  asylum,  or  institution  wholly  or  partly  supported  at  public  ex- 
pense or  by  charity.  It  is  a  common  practice  in  European  countries  to 
exclude  from  the  suffrage  those  who  are  or  have  been  supported  in  public 
institutions,  and  in  many  instances,  those  who  are  or  have  been  in  receipt 
of  what  is  known  as  "  out-door  relief."  And  it  has  been  contended  that 
New  York  shall  follow  the  example  of  European  countries.  At  first 
glance,  it  would  seem  that  such  a  constitutional  provision  would  safe- 
guard the  state  from  undesirable  voters,  on  the  theory  that  any  person  in 
receipt  of  public  relief  could  not  possess  the  independence  requisite  for 
an  elector.  It  is  recognized,  however,  that  as  the  people  have  come  to  be 
more  dependent  on  urban  industry,  an  increasingly  large  proportion  of 
the  working  classes  of  our  cities  and  towns  are  in  receipt  of  public  relief, 
at  some  time  in  their  lives,  and  particularly  during  periods  of  widespread 
depression  and  unemployment.  This  makes  it  apparent  that  any  such 
constitutional  provision  strictly  enforced  would  disfranchise  thousands 
of  worthy  citizens  and  would,  in  fact,  amount  to  a  restoration  of  a  prop- 
erty qualification  more  exclusive  in  its  operations  than  the  provisions 
swept  away  nearly  one  hundred  years  ago.  Moreover  the  difficulties  of 
administering  and  enforcing  such  a  provision  are  well  nigh  insuperable, 

19 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

except  in  the  smaller  communities  where  the  recipients  of  relief  are  well 
known  or  easily  discoverable. 

The  Question  of  W^ouian  Suffrage 

The  arguments  for  and  against  woman  suffrage  are  familiar  and 
need  no  re-statemcnt  here.  It  is  hardly  to  be  presumed  that  any  excur- 
sions into  the  logic  of  the  subject  will  aft'ect  the  judgment  of  the  conven- 
tion in  this  matter,  for  as  Mr.  Justice  Holmes  has  well  said:  "General 
propositions  do  not  decide  concrete  cases.  The  decision  will  depend 
upon  a  judgment  or  intuition  more  subtle  than  any  articulate  major 
premise." 

There  are,  however,  certain  historical  aspects  of  the  question  which 
deserve  consideration  in  attempting  to  reach  some  conclusion  concerning 
this  important  matter.  The  agitation  in  the  United  States  in  favor  of 
the  extension  of  the  suffrage  to  women  may  be  said  to  have  begun  with 
the  woman's  rights  convention  held  at  Seneca  Falls,  New  York,  in  1848. 
At  this  convention  a  clause  asserting  the  political  equality  of  the  sexes 
was  carried  by  a  small  majority,  in  the  face  of  the  opposition  of  many 
delegates  present.  Another  convention  held  in  1850  at  Worcester, 
Massachusetts,  demanded  the  suffrage,  better  educational  and  industrial 
opportunities  and  more  equal  laws.  The  right  of  women  to  speak  in 
public  and  organize  private  societies  for  public  and  philanthropic  work 
was  asserted. 

The  agitation  thus  begun  soon  bore  fruit  in  the  granting  of  the 
school  suff'rage  in  one  form  or  another  in  a  number  of  states,  particu- 
larly in  the  West.  Kentucky  had  already  taken  this  action  in  1838,  and 
between  1859  and  1869,  Kansas,  Michigan,  Nebraska  and  Wyoming 
allowed  similar  rights.  Other  western  states  soon  followed  their 
example,  and  between  1879  and  1899  several  eastern  states,  including 
Massachusetts  and  Connecticut,  adopted  woman  suffrage  for  school 
elections.  To  this  form  of  the  suffrage,  the  right  to  vote  on  bond  issues 
under  certain  conditions  was  extended  to  women  in  a  number  of  states, 
including  New  York. 

The  extension  of  the  principle  to  all  elections  occurred  first  in  1869 
in  Wyoming.  Nearly  thirty  years  elapsed  before  another  state  followed 
the  example  of  Wyoming.  In  1893  Colorado,  and  in  1896  Utah  and 
Idaho,  adopted  woman  suffrage.  This  advance  was  followed  by  a  set- 
back for  two  decades.  Provisions  for  the  enfranchisement  of  women 
were  defeated  by  the  voters  in  South  Dakota  in  1890  and  1897,  in  Kansas 
in  1894,  in  California  in  1896,  in  New  Jersey  in  1897,  and  in  other  states 
abovit  the  same  time. 

Before  another  decade  elapsed  the  movement  gathered  renewed 
force,  and  woman  suffrage  was  adopted  by  Washington  in  4910,  Cali- 
fornia in   1911,  Kansas,  Oregon  and  Arizona  in  1912,  and  Nevada  in 

20 


THE    PROVISIONS    GOVERNING    THE    ELECTORATE 


1914,  making  ten  states  in  all  with  equal  suffrage.  In  1913,  the  legisla- 
ture of  Illinois  gave  women  the  right  to  vote  for  all  statutory  officers  of 
the  state,  and  also  electors  for  President  of  the  United  States. 

Provisions  for  the  Definition  and  Discussion  of  Political  Issues 

A  condition  precedent  to  the  exercise  of  electoral  control  is  this 
—that  before  a  consensus  or  majority  opinion  may  be  taken  on  any 
question  at  issue  the  "  proposal,"  on  the  one  hand,  and  the  "  opposition," 
on  the  other,  must  be  so  clearly  defined  and  stated  that  dift'erences  in 
viewpoint  can  be  presented  and  discussed,  and  finally  that  a  vote  may  be 
taken  "  for  "  or  "  against  "  or  that  a  "  yes  "  or  "  no  "  ballot  may  be  cast. 

Conditions  Governing  Effectiveness  of  Electorate 

This  means  that  the  effectiveness  of  the  electorate  depends  on  the 
use  of  an  organization  and  procedure  by  means  of  which  proposals  and 
counter  proposals  of  officers  and  candidates  who  submit  questions  to  the 
electorate  may  be  brought  to  a  vote.  Fundamental  as  such  a  procedure 
is  to  popular  government,  it  has  been  left  out  of  consideration  in  framing 
all  our  constitutions  and  in  developing  the  laws  and  regulations  govern- 
ing authorities  under  them. 

Necessity  for  Development  of  a  Procedure 

This  necessity  is  recognized  by  the  courts.  For  the  purpose  of  judi- 
cial consideration  of  questions  in  controversy  involving  private  rights  a 
very  exacting  procedure  has  been  evolved.  Both  statutes  and  rules 
require  the  preparation  and  submission  of  issues  in  definite,  formal 
counts,  or  complaints  with  answers  and  replies  so  framed  that  there  can 
be  no  question  as  to  what  the  issue  is  when  the  case  is  presented  to  the 
court  for  the  taking  of  testimony,  argument  and  decision.  Similarly,  a 
very  exact  procedure  is  prescribed  governing  motions  and  arguments  be- 
fore the  court  on  questions  of  law ;  even  more  minute  is  the  practice  con- 
trolling the  production  of  evidence,  both  in  court  and  jury  proceedings, 
and  the  submission  of  briefs  and  arguments  of  counsel.  Public  opinion 
has  demanded  and  supported  an  organization  and  procedure  wherein 
courts  have  surrounded  themselves  with  attorneys,  referees  and  other 
officers  as  aides  in  coming  to  right  decisions.  They  control  every  detail 
of  proceedings  by  rules  of  practice  based  on  centuries  of  experience,  the 
aim  of  which  is  to  facilitate  the  ends  of  private  justice  by  clearly  defin- 
ing, presenting  and  arguing  issues  in  a  manner  which  will  enable  the 
court  and  the  jury  to  decide  whether  it  is  "  for  "  or  "  against  "  the  pro- 
ponent or  complainant. 

Notwithstanding  the  fact  that  the  government  has  been  so  exacting 
in  relation  to  the  whole  subject  of  private  justice,  it  has  given  practically 

21 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

no  attention  in  this  state,  and  little  attention  in  this  country,  to  the  subject 
of  defining,  presenting  and  determining  issues  having  to  do  with  the 
subjects  of  political  justice — issues,  questions,  decisions  on  matters  of 
public  policy — questions  which  affect  the  happiness  and  welfare  of  the 
whole  community — questions  which  are  submitted  to  the  "  electorate  " 
as  a  jury  whose  duty  it  is  to  sit  and  decide  political  controversies  by 
ballot.  This  widely  scattered  agency  of  popular  control  has  been  left 
without  provisions,  either  in  organization  or  procedure,  even  for  defining, 
taking  evidence  on,  and  reaching  decisions  with  respect  to  issues  to  be 
determined  by  ballot. 

The  Whole  Subject  Left  to  Private  Initiative 

In  this  country,  the  whole  subject  of  defining  and  presenting  political 
issues  has  been  left  to  private  initiative.  Here  necessity,  the.  mother  of 
invention,  has  produced  a  long  series  of  unofficial  non-legal  devices,  which 
have  had  for  their  purpose  the  doing  of  things  that  have  been  elsewhere 
more  effectively  done  ofificially  under  conditions  that  contribute  to  re- 
sponsibility. Without  doing  more  than  to  advert  to  these  adaptations, 
attention  is  called  to  the  fact  that  the  non-ofificial  and  detached  character 
of  our  political  agencies  called  "  parties,"  even  since  they  have  been  made 
the  subject  of  regulation,  in  the  nature  of  things  leaves  our  electoral 
system  defective  in  the  following  particulars : 

1.  The  parties  themselves,  under  our  system,  are  irresponsible. 

Any  agency  w^hose  responsibility  cannot  be  defined  and 
located  in  a  body  of  official  persons  within  the  govern- 
ment is,  of  necessity,  an  irresponsible  agency ;  therefore, 
it  is  one  that  does  not  make  for  "  responsible  "  govern- 
ment. 

2.  Party  action  is  not  taken  on  well-defined  current  issues.     The 

proposals  of  our  political  parties  are  made  and  submitted 
in  generalities  for  the  primary  purpose  of  obtaining  votes 
for  persons  seeking  office  and  ordinarily  they  do  not 
present  issues  arising  out  of  an  actual  division  on  impor- 
tant measures  or  subjects  of  public  business. 

3.  Proposals  by  irresponsible  non-ofificial  agencies  are  not  adapted 

to  securing  sound  judgment  from  the  electorate  and  are 
not  adapted  to  making  the  government  responsive. 


22 


THE    PROVISIONS    GOVERNING    THE    ELECTORATE 


The  Party  Platform  as  an  Attempt  to  Define  Issues 

The  instrument  at  present  employed  in  presenting  party  claims  to 
popular  support  is  what  is  called  a  "  platform."  This  is  prepared  and 
used  to  further  the  efforts  of  a  "  party  "  that  is  seeking  to  get  control  of 
state  offices.  It  is  made  up  largely  of  promises  and  not  of  issues.  As  a 
result  of  remarkable  legislation  in  New  York  the  party  platform  is  made 
by  an  extra-legal  and  wholly  uncontrolled  convention  and  the  candidates 
are  nominated  by  a  totally  different  body — namely,  the  entire  party  elec- 
torate. Thus  it  may  happen  that  the  platform  may  be  drafted  before  or 
after  the  nomination  of  candidates  and  that  the  candidates  of  the  same 
party  may  not  only  have  no  harmonious  relations,  but  may  even  entertain 
the  widest  divergence  of  opinion  on  matters  of  public  policy.  It  may 
happen,  also,  that  one  group  of  the  party  may  control  the  platform-making 
convention  and  another  group  may  nominate  candidates  wholly  out  of 
accord  with  the  express  policy  which  they  are  supposed  to  carry  out.  In 
short,  it  is  impossible  to  imagine  a  system  less  calculated  to  secure  the 
union  of  the  party  on  principles  of  public  policy  and  to  localize  respoiisi- 
l)ility  in  specified  public  officials  put  into  power  by  the  party. 

Method  Not  Adapted  to  Responsible  Government 

Assuming,  however,  that  a  union  of  party  nominees  on  the  prin- 
ciples of  the  platform  is  possible  under  our  present  system,  there  are 
other  devices  which  unavoidably  make  for  irresponsibility  in  our  gov- 
ernment. There  is  no  process  whereby  we  may  be  sure  that  the  "  plat- 
form "  relates  to  specific  acts  of  officers  associated  with  the  public  meas- 
ures and  policies  in  dispute.  On  the  contrary,  the  "  platform  "  is  a  long 
list  of  generalities  and  an  arraignment — a  general  list  of  proposals  ad- 
vanced by  one  "  unofficial  body  "  against  another  "  unofficial  body."  These 
non-official  organizations  and  non-official  expressions  of  opinion  are  not 
concerned  with  the  definition  and  decision  of  a  single  issue.  Parties  enter 
upon  a  campaign  with  a  platform  as  a  general  declaration  of  political 
faith  in  the  hope  that  they  may  get  the  electorate  to  pin  their  faith  to 
their  candidates,  rather  than  settle  any  one  or  more  of  the  broad  questions 
presented.  An  election,  therefore,  does  not  approve  or  disapprove  spe- 
cific acts  of  officers  or  of  an  organized  official  body  called  "  the  govern- 
ment," but  it  is  a  count  of  votes  for  candidates  for  office  who  are  not 
leaders  and  who  do  not  have  anything  more  than  remote  relation  to  what 
has  gone  before  or  what  may  happen  thereafter.  That  is,  our  political 
contests  do  not  center  sufficiently  in  official  persons  who  have  performed 
certain  acts  of  government  or  carried  out  specific  policies  or  in  candi- 
dates who,  if  elected,  will  do  certain  things  or  establish  certain  policies. 


constitution  and  government  of  the  state 

Provisions  Safeguarding  the  Exercise  of  the  Franchise 

In  all  countries  and  under  all  systems  where  an  "  electorate  "  is 
established  as  an  agency  of  control,  it  is  necessary  to  provide  an  organiza- 
tion and  a  procedure — 

1.  For  determining  that  only  such  persons  vote  as  are  authorized 

or  qualified. 

2.  For  protecting  electors  from  undue  influence  while  at  the  polls. 

3.  For  obtaining  a  true  record  and  report  of  results. 

This  is  of  equal  importance  whether  leadership  is  "  responsible  "  or 
"  irresponsible."  If  the  leader  is  responsible,  he  may  use  all  of  the 
executive  powers  to  continue  himself  in  office  and  further  his  own 
usurpation,  unless  provision  is  made  for  the  independence  of  election 
officers.  If  leadership  is  "irresponsible"  then  the  '"boss"  through  his 
control  over  the  executive  may  use  election  officers  to  continue  a  regime 
of  spoliation. 

Successful  Development  of  Safeguards  in  the  United  States 

It  is  a  curious  reflection  upon  American  political  genius  that,  although 
it  has  failed  to  develop  machinery  for  securing  precise  and  effective 
action  by  the  electorate  on  issues  and  official  actions,  it  has  evolved 
perhaps  the  most  successful  and  elaborate  methods  and  procedures  for  the 
protection  of  the  voter  in  the  exercise  of  his  electoral  rights.  The  first 
constitution  of  the  state  provided  for  a  full  and  fair  experiment  with 
voting  by  ballot,  a  device  not  then  generally  employed,  and  since  that 
time  the  problem  of  securing  a  "  fair  vote  and  an  honest  count  "  has 
received  extensive  consideration  at  the  hands  of  the  legislature  and  con- 
stitutional conventions. 

The  provisions  developed  for  obtaining  this  desirable  result  include 
the  following : 

1.  Registration  of  voters  before  election. 

2.  Official  primaries  for  political  parties. 

3.  The  Australian  ballot. 

4.  Bi-partisan  local  supervision  of  elections  with  multi-partisan 

co-operation  in  watching. 

5.  State  supervision  of  elections  and  official  count  of  ballots  sub- 

ject to  judicial  review. 

In  view  of  the  attention  which  has  been  devoted  to  the  perfection 
of  this  electoral  machinery,  it  would  seem  that  very  little  remains  to  be 
done  in  the  future.  The  subjects  which  are  still  under  marked  con- 
troversy are  citizenship  and  registration,  the  form  of  the  Australian 
ballot  and  the  office  of  the  Superintendent  of  Elections. 

24 


THE    PROVISIONS    GOVERNING    THE    ELECTORATE 


Citizenship  and  Registration 

in  the  effort  to  prevent  fraudulent  registration  and  what  is  known  as 
the  "  floating  vote  "  evil,  provisions  have  been  inserted  in  the  constitution 
to  the  effect  that  each  elector  must  have  been  a  citizen  of  the  United  States 
for  ninety  days,  an  inhabitant  of  the  state  for  one  year,  a  resident  of  the 
county  for  four  months  and  the  election  district  for  thirty  days  preceding 
the  date  of  the  election  at  which  he  casts  his  ballot.  Stringent  as  these 
safeguards  are,  there  is  a  demand  for  increasing  the  terms  of  citizenship 
and  residence  in  the  county  and  election  district.  By  the  present  limita- 
tions thousands  of  otherwise  qualified  and  honorable  citizens  are  deprived 
of  the  right  to  vote  every  year,  particularly  in  the  cities  where  the  con- 
ditions of  life  are  such  as  to  require  constant  movement  of  residence, 
especially  by  workingmen  and  the  professional  classes.  To  disfranchise 
still  more  honorable  citizens  in  an  effort  to  prevent  illegalities,  instead 
of  strengthening  the  machinery  for  preventing  fraud,  is  attacking  the 
problem  in  the  wrong  way,  and  cannot  be  too  vigorously  condemned. 
Whether  intended  as  such  or  not,  it,  in  fact,  is  another  political  device 
for  disfranchising  the  voters  of  New  York  City  on  the  untenable  assump- 
tion that  there  is  more  corruption  there  than  in  the  rural  districts  of  the 
state. 

The  Form  of  the  Australian  Ballot 

The  objection  has  arisen  that  the  Australian  ballot  may  be  so  devised 
as  to  become  an  instrument  of  the  irresponsible  boss  if  the  party  column 
is  employed  in  the  arrangement  of  the  names  of  candidates.  The  con- 
stitution merely  provides  that  elections,  except  for  such  town  officers  as 
may  by  law  be  directed  to  be  chosen  otherwise,  shall  be  by  ballot,  but 
the  form  of  the  ballot  may  be  greatly  varied  under  this  constitutional 
provision.  Indeed,  under  it  expedients  may  be  resorted  to  that  will 
violate  the  spirit  of  the  constitution  while  adhering  to  the  letter.  __,^^,.^.^ 

It  has  therefore  been  proposed  that  the  present  statutory  safeguards 
against  the  party  column  ballot  should  be  established  in  the  constitution. 
Such  proposals,  however,  seem  to  be  based  on  a  misconception  of  the  real 
source  of  the  difficulties  arising  out  of  the  party  column  system,  namely, 
upon  the  erroneous  idea  that  the  party  is  normallv  an  evil,  whereas  the 
real  objection  is  not  so  much  to  the  party  as  to  its  irres])onsibility.  Where 
the  representatives  of  a  party  can  be  made  entirely  responsible  for  the  con- 
duct of  the  government  when  placed  in  control,  there  can  be  no  objection 
to  giving  the  party  full  recognition  on  the  ballot.  Where,  however, 
the  administrative  branch  of  the  government  is  broken  into  innumer- 
able elective  offices  the  long  party  column  ballot  becomes  the  ambush 
in  which  the  invisible  party  boss  hides  his  train  of  petty  minions.  To 
scatter  these  candidates  for  minor  offices  among  a  number  of  groups 
or  place  them  in  alphabetical  order  does  not  in  fact  make  them  responsi- 

•    25 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

ble.  The  objections  therefore  to  the  present  constitutional  provisions 
respecting  the  ballot  should  be  directed  to  the  structure  of  the  govern- 
ment itself — not  to  the  form  of  the  ballot.  If  responsibility  in  the  govern- 
ment is  properly  established,  the  determination  of  the  form  of  the  ballot 
may  be  safely  left  to  the  legislature. 

State  Supervision  of  Elections 

The  third  administrative  problem  in  connection  with  safeguarding 
the  exercise  of  the  franchise  is  state  supervision  of  elections.  In  other 
states  the  control  of  the  election  process  is  left  to  local  agencies,  subject 
of  course  to  judicial  review  under  certain  circumstances.  In  New  York 
state  also  there  are  several  local  authorities  charged  with  functions  rela- 
tive to  preparing  and  distributing  the  ballots,  receiving  and  counting 
the  ballots,  and  policing  the  polling  places,  but  to  these  functionaries 
there  is  added  a  central  officer,  known  as  the  superintendent  of  elections, 
supported  by  a  large  staff  of  deputies  whose  duty  it  is  to  aid  in  prevent- 
ing illegal  registration  of  voters  and  illegal  voting.  This  central  control 
is  the  product  of  conditions  which  are  almost  peculiar  to  New  York. 
Broadly  speaking,  the  political  faith  of  Greater  New  York  City  is  dif- 
ferent from  that  of  the  "  up-state  "  region,  as  it  is  known  in  political 
circles.  Out  of  this  rivalry  of  parties  came  the  establishment  of  a  state 
supervision  of  all  elections  directed  against  the  City  of  New  York. 
To  speak  frankly,  it  was  a  Republican  device  for  preventing  frauds  in 
a  Democratic  community.  Although  the  expedient  accomplished  some 
very  good  results,  it  was  never  regarded  as  wholly  satisfactory  from  any 
Jingle  and  was  the  subject  to  constant  criticism  and  occasional  modi- 
tlcation,  the  last  being  in  an  act  passed  in  1915. 

The  principal  features  of  the  system  as  now  constructed  are  as 
follows : 

1.  Supervision  is  centralized  in  the  hands  of  one  superintendent  of 
elections,  instead  of  three. 

2.  The  supervision  is  state-wide  and  not  confined  to  cities. 

3.  All  deputies  are  made  completely  subject  to  the  control  of  the 
superintendent  who  appoints  and  removes  them  at  pleasure.  They  are  no 
longer  to  be  the  mere  nominees  of  county  chairmen  of  political  parties. 

The  chief  functions  vested  in  this  branch  of  the  government  arc : 

1.  The  investigation  of  all  questions  relating  to  registration  of 
voters. 

2.  The  arrest  of  persons  who  violate  the  provision  of  the  chapter 
on  elections  or  the  penal  law  relating  to  crimes  against  the  elective 
franchise. 

3.  Attendance  at  the  polling  places  and  co-operation  in  the  enforce- 
ment of  the  election  law. 

26 


THE    PROVISIONS    GOVERNING    THE    ELECTORATE 


Obviously  here  is  an  arm  of  the  government  endowed  with  enormous 
power.  It  is  substantially  at  the  disposal  of  the  governor  who  appoints 
the  superintendent  of  elections,  and  may  remove  him.  It  may  readily 
become  a  partisan  instrument  because  the  deputies  are  uncontrolled  by 
either  by  bi-partisan  provisions  or  the  restrictions  of  the  civil  service  law. 
As  such  it  may  be  used  as  unfairly  as  were  the  federal  marshals  and  their 
deputies  under  the  "  force  bills  "  of  Reconstruction  days,  who  became  so 
odious  throughout  the  country  that  the  whole  system  was  abandoned. 
At  all  events  no  effective  and  unpartisan  state  supervision  of  elections 
lias  yet  been  devised.  Charges  of  maladministration  in  the  work  have 
been  constant.  It  remains  to  be  seen  whether  the  present  law  will  prove 
more  satisfactory  than  past  measures  and  whether  attempts  at  state 
supervision  of  elections  are  not  more  dangerous  (where  not  futile)  than 
the  practice  of  trusting  to  local  officers,  party  rivalry  and  non-official 
efforts  in  every  community. 


27 


CHAPTER  IV. 
THE  OFFICIAL  PERSONNEL 

Provisions  of  Lazu  Governing  the  Qualifications,  Method  of  Selection, 
Tenure,  Compensation,  and  Welfare  of  Persons  Employed  in 
the  Public  Service. 

Lest  it  may  be  thought  that  the  word  "  official  "  is  here  employed  in 
the  narrow  sense  recognized  by  courts  in  distinguishing  the  administrative 
officers  from  members  of  the  legislature,  it  is  to  be  first  noted  that  the 
use  here  made  is  to  differentiate  those  who  are  in  the  organized  public 
service  from  the  "  electorate/' 

As  was  pointed  out  in  the  preceding  chapter,  the  public  agents  other 
than  the  "  electorate  "  consist  of  the  personnel  charged  with  the  duty  of 
"  rei)resenting "  the  electorate  between  elections,  and  the  "administra- 
tion " — a  personnel  charged  with  the  duty  of  conducting  the  business 
of  the  state. 

Subdivisions  of  Subject 

The  problem  of  selecting  such  official  agents,  determining  their 
qualifications  and  personal  rights,  and  maintaining  those  conditions  re- 
quisite for  the  full  and  satisfactory  discharge  of  their  duties,  is  a  funda- 
mental problem  which  should  be  dealt  with  concretely  in  constitutional 
and  statutory  provisions  governing  the  government.  Any  quest,  there- 
fore, for  responsible  and  efficient  government  must  go  deeply  into  the 
establishment  of : 

1.  Proper  methods  for  selecting  official  agents — election  or  ap- 

pointment. 

2.  Tenures  of  office  adapted  to  the  ends  sought. 

3.  Adequate  tests  to  be  applied  in  determining  the  fitness  and 

cjualifications  of  public  servants. 

4.  Satisfactory   conditions   governing   the    treatment,    promotion 

and  dismissal  of  public  servants. 

Importance  of  Separate  Consideration 

The  solution  of  these  problems  with  reference  to  standards  of 
responsiveness,  responsibility,  and  efficiency  has  never  been  undertaken 
in  a  systematic  and  thorough  manner  by  any  convention  or  other  body 
of  representatives  in  this  state.  There  are  many  provisions  in  the  present 
constitution  governing  the  choice,  c[ualifications,  removal,  rights,  and 
disabilities  of  public  agents  (see  Appendix,  Pages  199  to  210,  but  the 
subject  as  a  whole  has  received  no  extended  treatment.  On  the  con- 
trary, temporary  expedients  and   partisan   consideration   Iiave  been  too 

28 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


often  the  decisive  factors  in  determining  what  officers  should  be  elected, 
what  officers  should  be  appointed,  and  what  conditions  should  be  attached 
to  public  employment.  Where  attempts  have  been  made  to  regulate  the 
conditions  of  official  employment  in  the  public  interest,  they  have  usually 
been  negative  in  character — that  is,  designed  to  prevent  known  evils  such 
as  the  so-called  spoils  system  rather  than  to  promote  efficiency.  How 
to  obtain  advantage  for  some  partisan  group  or  to  prevent  official  agents 
from  doing  harm — not  a  reasoned  effort  to  formulate  a  constructive 
program — has  been  the  predominating  consideration  in  .shaping  a  very 
large  number  of  provisions  in  the  present  law  governing  elections, 
appointments,  qualifications  and  removals. 

Methods  of  Selecting  Public  Agents — Election  or  Appointment 
When  tested  by  constructive  standards,  the  present  constitution 
reveals  a  remarkable  absence  of  consistency.  Obviously,  in  determining 
■  vvhat  agents  should  be  elected  by  popular  vote  and  what  appointed,  both 
the  purpose  of  the  "  electorate  "  and  the  demands  which  are  to  be  made 
of  the  official  personnel,  as  a  means  of  making  the  government  respon- 
sive and  responsible,  are  to  be  taken  into  account.  But  it  is  not  apparent 
that  these  considerations  have  been  the  determining  factors  in  the  or- 
ganization of  the  existing  government.  In  adapting  methods  to  the 
l)urpose  of  the  "  electorate,"  it  is  desirable  that  they  shall  be  such  that 
popular  will  may  be  accurately  reflected  in  the  government,  but  it  does 
not  appear  that  the  preceding  conventions  have  sought  to  discover  what 
and  how  many  agents  should  be  chosen  by  the  popular  vote,  in  order 
to  attain  this  result. 

Election  of  Members  of  the  Legislature  and  the  Governor 

With  respect  to  certain  governing  agents,  the  method  of  choice 
has,  of  course,  been  easily  determinable.  The  representative  principle 
itself  requires  that  the  legislature  should  be  chosen  by  popular  vote,  but 
as  is  pointed  out  in  another  relation  (below,  pp.  60-64),  the  decision  as 
to  the  method  of  determining  what  is  the  popular  choice  is  not  so  easily 
reached.  Similar  considerations  of  responsiveness  and  responsibility 
have  likewise  brought  about  the  popular  election  of  the  governor.  No 
serious  criticisms  of  that  process  of  selection  have  ever  been  made  and 
the  other  states  which  originally  provided  for  the  choice  of  the  governor 
by  the  legislature  or  by  an  electoral  college  have  abandoned  them  to 
follow  the  example  of  New  York  and  Massachusetts. 

Election  of  Other  Officers 

At  this  point,  agreement  among  publicists  and  statesmen  on  the 
matter  of  election  versus  appointment  and  consistency  in  our  state  con- 
stitutions  disappear.     In   determining  the  methods   of   selecting  all  of 

29 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

the  remaining  agents  of  government,  historical,  negative  and  apparently 
accidental  considerations,  have  had  a  preponderating  weight.  The  pos- 
sible exception  is  the  lieutenant-governor  who  is,  in  New  York,  chosen 
by  popular  vote,  but  who  is  dispensed  with  altogether  in  other  states, 
for  example,  the  neighboring  state  of  New  Jersey. 

Provisions  in  Constitutions  of  New  York 

The  statement  that  historical,  negative,  and  accidental  considerations 
have  had  a  determining  weight  in  deciding  whether  other  public  servants 
should  be  elective  or  appointive  requires  elucidation.  Under  the  con- 
stitutions of  1777  and  1821,  several  high  executive  officers  of  the  state 
were  chosen  by  the  legislature. 

Choice  By  Legislature  and  "  the  Albany  Regency  " 

It  was  found,  however,  by  practical  experience  that  this  method  did 
not  establish  responsibility  or  efficiency  in  all  branches  of  the  govern- 
ment, and  that  an  unofficial  system  dominated  by  "  bosses  "  known  as  "  the 
Albany  Regency,"  had  sprung  up  outside  of  the  government  for  the  pur- 
pose of  controlling  all  of  the  patronage  of  the  state,  and  had  practically 
taken  out  of  the  hands  of  the  legislature  and  the  governor  the  selection 
of  the  high  public  officers  as  well  as  the  minor  officers. 

Direct  Election  as  a  Cure  for  "Invisible  Government" 

This  condition  of  "  invisible  "  government  was  largely  responsible 
for  the  demand  for  the  revision  of  1846.  One  of  the  tasks  which  the  con- 
stitutional convention  of  that  year  regarded  itself  as  called  upon  to 
accomplish  was  the  "  abolition  "  of  the  system  of  irresponsible  government 
so  far  as  it  was  connected  with  the  choice  of  executive  officers  under  the 
constitution  of  1821.  In  other  words,  negation,  as  before,  was  uppermost 
in  the  minds  of  the  delegates.  It  happened  about  the  same  time  that 
Western  Europe  was  disturbed  by  the  agitation  against  royal  and  imperial 
despotism  which  broke  out  in  1848  in  a  series  of  violent  revolutions  in 
France,  Germany,  Austria,  and  Italy.  This  agitation  was  in  one  significant 
respect  similar  to  that  which  had  accompanied  the  American  revolution ; 
that  is,  it  was  aimed  at  the^destruction  of  the  arbitrary  power  of  heredi- 
tary despots.  The  obvious  remedy  seemed  to  be  the  destruction  of  the 
executive.  That  was  the  primary  task  before  rising  democracies.  It 
was  not  possible  to  talk  about  controlling  the  executives  in  the  name  of 
efficient  democracy  until  democracy  had  reduced  the  executive  to  such 
a  constitutional  position  that  he  could  be  controlled  by  law.  It  was 
under  these  circumstances — the  clamor  for  the  abolition  of  the  unofficial 
despotism  of  the  Albany  Regency  and  the  wide-spread  agitation  against 
official  despotism  of  European  monarchs  which  reached  our  shores — 
that  the  convention  of  1846  made  the  secretary  of  state,  comptroller, 

30 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


treasurer,  attorney  general,  state  engineer,  and  the  judges  elective  by 
popular  vote.  The  one  was  aimed  at  the  abuse  of  legislative  power, 
the  other  was  aimed  at  the  abuse  of  executive  power.  Both  sought  to 
accomplish  their  ends  by  giving  to  the  electorate  a  larger  sphere  of  power. 

General  Acceptance  of  Theory  as  Democratic 

It  is  true,  the  proceedings  of  the  convention  of  1846  record  a  demand 
that  these  high  officers  be  made  responsible  to  the  people  by  the  estab- 
lishment of  popular  election,  but  it  is  likewise  true  that  abolition  of 
certain  evils  was  uppermost  in  the  minds  of  the  delegates.  They  evi- 
dently assumed  that  by  transferring  the  right  of  election  from  the  legis- 
lature to  the  people  the  irresponsible  and  unofficial  boss  system,  which 
had  hitherto  controlled  the  choice  in  fact,  would  disappear,  on  the  general 
theory  that  leadership  is  not  essential  to  intelligent  operations  in  such 
matters.  That  which  was  a  historical  accident  then  became  a  dogma, 
namely,  that  all  high  officers,  no  matter  what  their  duties,  must  on  demo- 
cratic principles,  be  elected  by  popular  vote.  And  the  theory  has  been 
carried  to  such  a  great  length  that  a  governor  of  a  western  state  solemnly 
declared  not  long  ago  that  the  appointment  of  the  state  veterinarian  by 
tlie  chief  executive  savored  of  monarchy. 

Need  for  Principle  Consistent  with  Requirements  of  Responsible 
Government 

Yet  those  who  have  applied  this  dogma  so  confidently  have  shown 
neither  consistency  nor  the  courage  of  their  convictions.  To  speak  more 
concretely,  no  conclusion  or  guiding  principle  has  ever  been  put  forth 
for  determining  what  officers  should  be  elected  and  what  officers  should 
be  appointed.  No  official  or  determining  body  has  given  a  reasonable 
answer  to  the  question :  "  Why  should  the  state  engineer  and  surveyor 
be  elected  by  popular  vote  and  the  superintendent  of  public  works  be 
appointed  by  the  governor  and  the  senate  ?  " 

Standards  for  judgment  in  matters  of  this  kind  cannot  be  theories 
evolved  in  the  closet  of  the  political  philosopher.  They  must  come  from 
experience  in  the  successful  conduct  of  affairs.  No  sensible  business- 
man who  has  a  large  staff  of  employees  under  him  regards  it  an  invasion 
of  his  sovereignty  when  he  surrenders  to  an  expert  engineer  whom  he 
has  selected  the  power  to  choose  employees  who  are  to  work  under  him. 
No  one  who  is  familiar  with  practice  in  governments  which  are  responsive 
and  responsible,  will  contend  that  appointment  of  subordinates  by  those 
who  are  to  be  held  responsible  for  results,  has  operated  to  destroy  the 
principle  of  representative  government.  So  it  is  absurd  to  claim  that 
the  people  lose  their  sovereignty  if  they  surrender  to  the  governor  whom 
they  elect  the  right  to  appoint  the  state  engineer.  An  obvious  retort  is : 
that  they  lost  it  when  they  surrendered  the  right  to  elect  all  the  other 

31 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

officers  of  consequence  in  the  executive  departments.  On  the  contrary,  it 
has  been  amply  shown  by  experience  that  no  tests  of  practical  democracy 
require  the  election  of  a  long  list  of  state  officials,  if  provision  is  made 
for  holding  the  head  of  the  government  responsible.  As  before  pointed 
out,  the  condition  which  has  given  rise  to  the  various  experiments  and  new 
expedients  has  been  the  failure  to  make  positive  provisions  for  utilizing  the 
existing  machinery  to  make  governing  agents  responsive  and  responsible — 
consequently  the  negative  provisions  employed  to  render  officers 
harmless  when  operating  under  a  plan  which  provides  only  for 
irresponsible  control. 

Advocates  of  the  Present  Method  on  the  Defensive 

Considering  the  fact  that  responsible  government  has  been  one  in 
which  there  has  been  a  single  elected  or  appointed  head  of  administration, 
cither  this  or  a  small  elected  or  appointed  council,  and  the  further  fact 
that  every  government  in  which  a  large  number  of  administrative  officers 
are  elected  has  proved  to  be  both  irresponsive  and  irresponsible,  it  is 
incumbent  upon  those  who  favor  the  latter  practice  to  show  that  it  is 
compatible  with  democratic  theory.  Those  who  claim  that  the  people 
are  fully  competent  to  elect  any  officer  appeal  to  popular  pride,  and 
choose  a  premise  for  argument  that  few  in  America  will  deny,  but  the 
further  claim  that  the  voters  may  elect  ten,  twenty,  or  fifty  executive 
officers  at  the  same  time  is  an  entirely  different  matter.  It  is  showing 
no  disrespect  for  a  man  to  say  that  his  ability  to  break  any  stick  in  a 
bundle  does  not  imply  that  he  can  break  at  one  time  as  many  sticks  as 
may  be  wrapped  together.  Few  of  the  champions  of  the  election  of  a 
long  list  of  executive  officers  would  go  so  far  as  to  hold  that  the  voters 
could  actually  and  effectively  choose  the  five  hundred  or  thousand 
administrative  officers  of  the  state  government  at  one  election.  From 
the  point  of  view  of  the  capacity  of  the  electorate,  therefore,  there  must 
be  a  limit  to  the  number  of  officers  that  can  be  chosen  by  popular  vote. 

Assuming    "Electorate"    Adapted    to    Choosing,    Not    Consistent    with 
Administration 

But  assuming  the  electorate  is  competent  to  exercise  good  judgment 
in  choosing  ten,  twenty  or  fifty  officers  out  of  a  list  of  from  twenty  to 
two  hundred  candidates,  further  questions  are  to  be  answered,  viz., 
whether  and  to  what  extent  this  method  of  selection  is  desirable ;  to  what 
extent  may  popular  election  be  successfully  used  as  a  means  of  locating 
and  enforcing  responsibility ;  to  what  extent  is  it  adapted  to  the  develop- 
ment of  efficiency.  Past  experience  may  be  reduced  to  conclusions  that 
may  serve  as  guiding  principles  for  determining  what  officers  may  be 
elected  to  advantage  and  what  should  be  appointed. 

32 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


Limitations  of  Electorate 

If  governing  agents  are  to  be  made  responsive  to  the  popular  will 
through  the  electorate,  then  the  number  of  state  offices  that  should  be 
filled  by  election  is  naturally  confined  by  the  following  limitations : 

1.  No  officer  should  be  elected  whose  powers  and  duties  do  not 

make  him  important  enough  to  attract  and  secure  inten- 
sive and  extensive  popular  interest,  concern  and  scrutiny. 

2.  Only  those  officers  should  be  elected  who  have  the  power  to 

decide  important  questions  of  policy  or  who  are  expected 
to  assume  leadership  in  the  formulation  and  execution 
of  governmental  programs,  for  the  aim  of  efficient  demo- 
cratic government  is  to  carry  out  the  will  of  the  electorate 
and  to  locate  responsibility  for  doing  so. 

3.  The  number  of  officers  elected  at  any  one  time  should  be  so 

limited  that  the  policies  and  merits  of  each  may  receive 
adequate  and  efifective  scrutiny  by  the  voters. 

Requirements  of  Administration 

If  governing  agents  are  to  be  made  responsible  for  what  they  propose 
as  well  as  what  they  do — for  fidelity,  for  efficiency,  and  for  economy  in 
the  use  of  public  powers  and  resources — then  another  principle  may  be 
accepted  which  is  quite  in  harmony  with  those  above  stated,  viz.,  that  only  . 
such  officers  should  be  elected  as  are  to  act  independently ;  that  those  ^/i, 
who  are  to  act  as  subordinates  should  be  appointed.  If  governing  agents'  ' 
are  to  be  held  to  account  tor  fitness  ot  subordmates  ample  provision 
should  be  made  to  determine  fitness  and  ability  to  render  service,  but  the 
means  provided  should  not  be  such  as  to  destroy  official  responsibility. 
If  governing  agents  are  to  be  held  to  account  for  efficiency,  then  the 
conditions  surrounding  public  employment,  such  as  initial  salaries,  rights 
to  advances  or  promotion,  tenures,  retirement,  health  and  comfort,  as 
well  as  powers  of  discipline,  should  be  such  as  will  enable  responsible 
offices  in  the  government  to  develop  and  retain  experience  and  expertness 
in  the  handling  of  the  many  complex  and  difficult  problems  of  the  public 
service. 

Appointment  of  Snbordinates  an  Essential  of  Executive  Responsibility 

There  are  no  abstract  principles  of  democracy  or  government  which 
are  deserving  of  consideration  that  do  not  rest  on  practical  experience. 
Pow£r.  as  Senator  Root  has  said,  should  be  commensurate  with  responsi- 
bility.     One  of  the  powers  essential  to  the  fulfillment  of  adniinistrative  /\ 

responsibilitv   is   the   power  to   determine   the   fitness   and   exercise   the      /    y     ^ 
discipline   necessary   to   direct,   control   and  ^  develop   the   expertness    of 
subordinate^,.     From  this  point  of  view  adniinistrative  provisions  of  the 
present  constitution  are  hopelessly  at  variance  with  all  principles  and  all 

33 


Chart    I.— SHOWING     THE     DIFFERENT     METHODS     PRESCRIBED     BY     LAW     FOR 
^      APPOINTING    HEADS    OF    DEPARTMENTS,    OFFICES,     BOARDS    AND 
COMMISSIONS. 


KEY  TO  CHART  I.— SHOWING  THE  DIFFERENT  METHODS  OF  APPOINTMENT 
PRESCRIBED  BY  LAW,  ROMAN  NUMERALS  BEING  USED  FOR  PURPOSES 
OF  REFERENCE  TO  CHART  ON  OPPOSITE  PAGE. 


APPTD.  JOINT  LEGISLATURE 

I. — 1 — Am.  Scenic  and  Hist.  Preserv.  Soc. 
2 — New  York  State  Historic.  Asso. 
3 — German-American  Alliance 
4 — Comm.  Daughters  Am.  Rev.  N.  Y.  State 
5 — Mahwenawasigh  Chapter  D.  A.  R. 
6 — Mt.  McGregor  Memorial  Asso. 
7 — Johnstown  Hist.  Soc. 

(*Seven  organizations  are  designated  by  joint 
legislature   as   custodians   of   historic   sites.    The 
personnel  of  the  organizations  is  self-perpetuating) 
II. — 1 — Bd.  Statutory  Coasolidation 
2— Bd.  Regents  (Ed.  Dept.) 

APPTD.  PART  JOINT  LEGIS.,  PT  EX-OFF. 

III. — 1 — Bd.  Trust.  Inst.  Study  Malignant  Diseases 

APPTD.  GOV.,  ASSEMBLY  SENATE 

IV. — 1 — Commn.  Investigate  Iloasing,  Cities  2nd  CI. 
2 — N.  Y.  State  Factory  Investigating  Commn. 
3 — Panama-Pacific  Exp.  Commn. 
4^Treaty  Ghent  Commn. 

APPTD.  JOINT  LEGIS.,  APRVD,  BY  GOV. 

V. — 1 — Curtis  Monument  Commn. 

2 — Irish  Brigades  Monument  Commn. 

APPTD.  GOV.  W.  ADV.  &  CONS.  SEN. 

VI.^l — State  Supt.  Elections 

2 — State  Supt.  Weights  and  Measures 

3 — Fiscal  Supervisor  State  Charities 

4— Militia  (Maj.  Gen.) 
VII.— 1— Bd.  Claims 

2 — Bd.  Tax  Commissioners 

3— State  Bd.  Port  Wardens 

4— Bd.  Trust.  State  Agr.  Exp.  Sta.  (Geneva) 

5 — State  Bd.  Public  Charities 

g (Bd.  Mgrs.  Reformatory  (Elmira) 

]  Bd.  Mgrs.  East.  N.  Y.  Reformatory  (Napanoch) 

7 — Bd.  Mgrs.  Agr.  and  Indust.  School  (Industry) 

8 — Bd.  Mgrs.  West.  Home  Refuge  Women  (Albion) 

9 — ^Bd.  Mgrs.  Reformatory,  Women  (Bedford) 
10— Bd.  Mgrs.  Training  School  Girls  (Hudson) 
11 — Bd.  Mgrs.  Industrial  Farm  Colony  (Green  Haven) 
12— Bd.  Mgrs.  Train.  Sch.  Boys  (Yorktown  H'ghts) 
13 — Bd.  Mgrs.  Reformatory,  Misdemeanants 
•    14 — Bd.  Mgrs.  Rome  Custodial  Asylum 
15 — Bd.  Mgrs.Cust.Asy.  Feebleminded  Women(Newark) 
16— Bd.  Mgrs.  Letchworth  Village  (Thiells) 
17 — Bd.  Mgrs.  Inst.  Feebleminded  Children 
18 — Bd.  Mgrs.  Craig  Colony  Epileptics  (Sonyea) 
19 — Bd.  Mgrs.  Hosp.  Care  Crippled  Children 
20 — Bd.  Mgrs.  School  for  Blind  (Batavia) 
21— Bd.  Mgrs.  Hosp.Tr'tm'nt  Incip.Tuberc.  (Ray  Brook) 
22 — Bd.  Mgrs.  Women's  Relief  Corps  Home  (Oxford) 
28 — Bd.  Mgrs.  Thomas  Indian  School  (Iroquois) 
24— Bd.  Mgrs.  Utica  State  Hospital 
25— Bd.  Mgrs.  Willard  State  Hospital 
26 — Bd.  Mgrs.  Hudson  River  Hospital 
27 — Bd.  Mgrs.  Middletown  State  Homeopathic  Hosp. 
28— Bd.  Mgrs.  Buffalo  State  Hospital 
29 — Bd.  Mgrs.  Binghamton  State  Hospital 
,     30— Bd.  Mgrs.  St.  Lawrence  State  Hospital 
31— Bd.  Mgrs.  Rochester  State  Hospital 
32 — Bd.  Mgrs.  Gowanda  State  Homeopathic  Hosp. 
33 — Bd.  Mgrs.  Mohansic  State  Hospital 
34 — Bd.  Mgrs.  Long  Island  State  Hospital 
35— Bd.  Mgrs.  Kings  Park  State  Hospital 
36 — Bd.  Mgrs.  Manhattan  State  Hospital 
37— Bd.  Mgrs.  Central  Islip  State  Hospital 
38 — Bd.  Trust.  Washington  Headq't'rs  (Newhurgh) 
VIII. — 1 — Dept.  Efficiency  and  Economy 

2 — Banking  Dept. 

3— Insurance  Dept. 

4 — Dept.  Excise 

5— State  Dept.  Health 

6— Health  Officer  Port  N.  Y. 

7 — Dept.  Labor 

8 — Dept.  State  Fire  Marshal 

9 — Dept.  Agriculture 
10— Prison  Dept. 
11— Dept.  Arch. 
12— Dept.  Public  W'ks 
13 — Dept.  Highways 
IX. — 1 — Sing  Sing  Prison 

2 — Auburn  Prison 

3 — Clinton  Prison 

4 — Great  Meadow  Prison 

5— State  Farm,  Women  (Valatie) 

6 — Dannemora  State  Hosp.  Insane  Convicts 

7 — Matt  ea wan  State  Hosp.  Insane  Criminals 


X. — 1 — Saratoga  Springs  State  Res.  Commn. 

2 — Fire  Island  State  Park  Commn. 

3 — Watkins  Glen  Reservation  Commn. 

4 — Pahsades  Interstate  Park  Commn. 

5 — Commn.  Prom.  Uniformity  Legis.  U.  S. 

6 — State  Civil  Service  Commn. 

7— Pub.  Serv.  Commn.  (1st  Dist.) 

8— Pub.  Serv.  Commn.  (2nd  Dist.) 

9 — State  Commn.  Prisons 
10 — Bronx  Parkway  Commn. 
11 — Conservation  Dept.  (Commn.) 
12 — Commn.  State  Reserv.  (Niagara) 
13 — Newtown  Battlefield  Commn. 
14 — State  Hosp.  Commn. 
XI.— 1 — Dir.  Psychiatric  Inst. 

APPTD.  PT  GOV.,  ASSEMB.,  SEN.,  PT  EX-OFF. 
XII. — 1 — Perry  Victory  Centennial  Commn. 

APPTD.  PT  GOV.,  ADV.  CONS.  SEN.,  PT  EX-OFF. 
XIII.— 1—Bd.  Trust.  State  Ssh.  Ag.  (Morrisville) 

2— Bd.  Cont.  State  Sch.  Ag.  Dom.  Sc.  (Delhi) 

3— Bd.  Parole  State  Prisons 

4— Bd.  Trust.  Soldiers,  Sailors  Home  (Bath) 
XIV. — 1 — Workmen's  Compensation  Commn. 

APPTD.  PT.  GOV.,  MAYOR  N.  Y.,  P T  EX-OFF. 
XV.— 1— N.  Y.  Bridge  and  Tunnel  Commn. 

APPTD.  GOV.  ALONE 
XVI. — 1 — Commissioner  to  Index  Session  Laws 

2 — Commn.  Fed.  Legis.  Ahen  Insane 

3 — Commn.  Invest.  Port  Cond.,  N.  Y.  Harbor 

4 — Voting  Machine  Commn. 

5 — State  Racing  Commn. 

6— N.  Y.  State  Athletic  Commn. 

7 — Commn.  for  Blind 

8 — Commn.  Invest.  Prov.  Mentally  Def. 

9 — Ketchum  Memorial  Commn. 
XVII.— 1—Bd.  Embalming  Examiners 

2 — Bd.  Exam.  Feebleminded,  Criminal,  Other  Def. 

3 — Bd.  Trust.  Schuyler  Mansion 
XVIII.— 1 — Miscellaneous  Reporter 

2 — Harbor  Masters 

3 — Spd.  Exam,  and  Apprais.  Canal  Lands 
APPTD.  PT  GOV.,  STATE  BD.  CHAR.,  PRIS.  COMMN., 

PT  EX-OFF. 
XIX.— 1— State  Probation  Commn. 

APPTD.  PT  GOV.,  PT  EX-OFFICIO 
XX.— 1—Bd.  Trust.  State  School  Agr.  (L.  I.) 

2 — Bd.  Trust.  College  Forestry  (Syracuse) 

3 — Advis.  Bd.  Prom.  Agriculture 

4— Bd.  Trust.  Schoharie  State  Sch.  Agr. 

5— Bd.  Gov.  State  Nautical  Sch. 

6 — State  Bd.  Geographic  Names 
XXI. — 1 — Const.  Conv.  Commn. 

2 — Commn.  Revise,  Codify  Tax  Laws 

3— N.  Y.  State  Fair  Commn. 

4 — N.  Y.  Mon.  Commn.  Gettysburg,  Chatt.,  Antietara 

5— 25th  N.  Y.  Vol.  Cav.  Mon.  Commn. 
APPTD.  FISC.  SUPVSR.:  SUPT.  AS  CH'R'M'N,  CH'RM'N 
APPTS   2    SrWDS:     ANNUAL  MT'G 
SUPTS.  APPTS.  3  OWN  NO. 
XXII.— 1— Joint  Pur.  Comm.  Char.  Inst. 

WHOLLY  EX-OFFICIO 
XXIII.— 1— Bd.  Estimate 

2— State  Printing  Bd. 

3 — State  Bd.  Canvassers 

4 — State  Bd.  Equalization 

5— State  Bd.  Classification 

6 — Bd.  Retirement  State  Hosp.  Emp. 

7— Canal  Bd. 

8— Trust.  Pub.  Bldgs.  (Bd.) 
XXrV.—l— Salary  Class.  Commn. 

2 — Bldg.  Improvement  Commn. 

3 — Commn.  Sites,  Grounds,  Buildings 

4 — Commissioners  Canal  Fund 

5 — Conunissioners  Land  Office 

6— Battleship  "New  York"  Silver  Serv.  Commn. 
XXV. — 1 — Cust.  Saratoga  Monument 
XXVI.— 1— Dept.  Pub.  Bldgs.  (Supt.) 
SELF-PERPETUAT'G     IN     PT    (NON-STATE     OFF.), 

P T  EX-OFF. 
XXVII.-1-Bd.  Mgrs.  Soc.  Ref.  Juv.  Del.,  N.  Y.  (Ran- 
dall's Is.) 
APPOINTED  BY  COURT  OF  APPEALS 
XXVIII.— 1— State  Bd.  Law  Examiners 
XXIX.— 1— State  Reporter 

APPTD.  APPELLATE  DIV.  SUPREME  COURT 
XXX. — 1 — Supreme  Court  Reporter 


35 


CONSTITUTlUi\    AMV    GOVERNMENT    OF    THE    STATE 

reasons  based  on  experience.  Officers  who  duties  are  an  essential  part 
of  the  business  to  be  done,  whose  action  is  a  necessary  part  of  cooperative 
labor  in  rendering  further  services  are  made  independent.  Under  the 
present  constitution  there  is  no  head.  The  governor,  in  whom  the 
executive  power  is  solemnly  vested,  does  not  possess  the  means  and 
authority  necessary  to  exercise  it.  Five  of  the  heads  of  department  are 
made  independent  through  election.  With  respect  to  these  the  governor 
has  no  power  to  appoint  or  remove.  He  may  suspend  temporarily  one 
officer  who  is  elected  by  popular  vote,  but  he  cannot  remove  without  the 
consent  of  the  senate  many  officers  whom  he  appoints  with  the  approval 
of  that  body.  In  short,  by  reason  of  the  method  prescribed  for  selection, 
personal  responsibility  for  the  conduct  of  government  is  so  broken  up 
that  it  is  beyond  the  powers  of  man  to  discover  it  either  in  individuals 
or  the  collective  body.  (See  below,  pp.  89-100,  for  a  treatment  of  the 
executive  department.) 

Methods  of  Appointment 
When  it  is  decided  that  certain  officers  shall  be  appointed,  the  method 
of  appointment  becomes  of  prime  importance.  The  underlying  reason 
for  appointing  instead  of  electing  administrative  officers  is  to  locate 
responsibility  and  make  it  enforcible ;  it  is  a  method  adapted  to  the  choice 
of  subordinates.  Tlie  adoj)tion  of  the  metliod  implies  that  the  appointing 
officer  assumes  responsibility  for  the  proper  conduct  of  the  appointee. 
The  location  of  responsibility  for  appointments  depends  on  placing  the 
power  to  select  with  the  officer  who  is  to  be  held  to  account  for  the  acts  of 
the  appointee.  Discipline  and  efficiency  are  impossible  unless  adequate 
power  to  maintain  them  is  vested  in  those  whom  the  constitution  and  public 
opinion  make  responsible  for  securing  them. 

Present  Legal  Provisions  Governing 

Tried  by  such  standards,  the  present  constitution  and  the  system  of 
go\ernment  created  under  it,  are  devoid  of  plan  and  principle  alike.  To 
the  end  that  this  constitutional  and  statutory  confusion  of  responsibility 
may  be  brought  home  to  the  reader,  a  chart  giving  the  exact  jiicture  of 
the  methods  prescribed  by  statute  for  apj)ointing  officers  is  ])rinted  on  page 
34.  As  is  graphically  shown  by  Chart  I,  there  are  at  least  sixteen  diff"erent 
ways  of  appointing  the  heads  of  state  departments,  bureaus  and  offices 
and  members  of  commissions,  viz. : 

1.  By  joint  action  of  both  houses  of  the  legislature. 

2.  Partly  by  joint  action  by  both  houses  of  the  legislature  and 

partly  by  action  of  the  law  (ex  officio). 
?).     By  joint  action  of  both  houses  of  the  legislature  and  approval 

of  the  governor. 
4.     By  separate  action  of  the  senate,  assembly  and  the  governor. 

36 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


5.  Partly  by  separate  action  by  the  senate,  assembly  and  the 

governor  and  partly  by  operation  of  the  law  (ex  officio). 

6.  By  the  governor  with  the  advice  and  consent  of  the  senate. 

7.  Partly  by  the  governor    with  the  advice  and  consent  of  the 

senate  and  partly  by  operation  of  law  (ex  officio). 

8.  By  the  governor  alone. 

9.  Partly  by  the  governor  and  partly  by  law  (ex  officio). 

10.  Partly  by  the  governor  and  the  mayor  of  the  City  of  New  York 

and  partly  by  the  operation  of  law  (ex  officio). 

11.  Partly  by  the  governor,  the  state  board  of  charities  and  the 

prison  commission  and  partly  by  operation  of  law    (ex 
officio). 

12.  Wholly  ex-officio 

13.  By  the  fiscal  supervisor  and  one  of  his  appointees  and  by 

superintendents  who  are  not  his  appointees 

14.  By  self-perpetuating  bodies 

15.  By  the  court  of  appeals 

16.  By  the  supreme  court 
Purpose — to  Prevent  Responsible  Leadership 

If  there  was  any  doubt  as  to  the  lack  of  plan  or  purpose  in  developing 
methods  of  appointment,  no  further  evidence  is  necessary  to  carry  con- 
viction. Moreover  it  is  clear  that  the  responsibility  for  this  chaos  rests 
largely  upon  the  legislature  in  the  absence  of  constitutional  treatment. 
It  is  clear  that  the  controlling  consideration  in  the  legislature  in  prescrib- 
ing methods  of  appointment  has  not  been  to  make  the  government  respon- 
sible directly  to  public  opinion  or  to  make  anyone  responsible  for  leader- 
ship, for  fidelity,  or  for  efficiency  and  economy  in  carrying  on  the  busi- 
ness of  the  state.  It  is  equally  clear  that  the  dominant  motives  have 
been  to  prevent  responsible  leadership,  to  dififuse  authority  and  to  set 
one  officer  up  against  another  so  that  no  agent  could  have  any  power 
to  do  harm.  However  useful  the  constitution  and  the  laws  governing 
appointment  may  be  as  instvuments  of  negation,  there  can  be  no  doubt 
that  they  are  wholly  unadapted  to  meeting  the  increasing  and  changed 
demands  made  upon  the  government  for  service  and  for  rendering  effici- 
ently the  duties  undertaken. 
Constitutional    Provisions    Determining    Qualifications    and 

Fitness 

As  in  private  employments,  the  determination  of  the  qualifications 
and  relative  merits  of  persons  who  are  available  for  employment  or 
already  in  the  service  is  a  matter  of  primary  importance.  The  difficulty 
of  forming  any  genuinely  helpful  rules  for  guidance  is  great  owing  to 
the  subtle  human  elements  involved.  Nevertheless  there  are  certain 
general  principles  that  may  serve  to  guide.     The  first  of  these  is  that  any 

37 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

niethods  devised  for  determining  ability  and  fitness  must  be  adapted  to 
the  methods  of  choice  imposed  upon  those  who  make  the  selectioii.  A 
sc^oiTcl  is  that  |t  is  necessary  to  dififercntiate  between  offices  which  are 
technical  or  routine  in  character  and  those  which  involve  manao'erial 
discretion  and  the  settlement  of  important  matters  of  policy.  A  third 
is  that  facilities  should  be  aft'orded  for  prompt  removal  of  persons  who 
show  infidelity  or  who  by  a  practical  test  or  record  ot  work  done  have 
shown  incapacitiL 

Requirements  of  Elective  Officers  Fortuitous 

Where  officers  are  made  elective,  it  is  only  natural  that  political 
considerations  should  determine  the  chief  qualifications  imposed.  If 
offices  requiring  technical  or  professional  training  are  filled  by  popular 
vote  it  sometimes  happens  that  other  considerations  are  entertained  by 
constitution  makers.  In  New  York  the  following  constitutional  provi- 
sions govern  the  qualification  and  fitness  of  elected  officers : 

1.  Citizenship  and  age — applicable  to  the  governor  and  the  lieu- 

tenant governor 

2.  Training  and  experience — applicable  to  the  state  engineer  and 

surveyor  (and  to  judges) 

3.  Residence — applicable  to  the  governor  and  the  lieutenant  gov- 

ernor 

The  constitutional  requirements  are  either  unnecessary  or  are  inade- 
quate. For  example,  what  reason  can  be  advanced  for  prescribing  in  the 
constitution  the  c[ualifications  of  the  state  engineer,  and  omitting  all  men- 
tion of  the  qualifications  of  the  attorney  general  and  other  officers  who, 
to  perform  efficient  service,  must  have  professional  training  and  experi- 
ence ? 

Requirements  of  Appointed  Officers  and  Employees  Inadequate 

Adopting  the  grouping  above  suggested,  viz. :  officers  who  have  confi- 
dential, managerial  or  important  discretion?iry  powers  and  those  whose 
duties  are  merely  technical,  professional,  or  routine  in  character,  only 
two  officers  of  the  first  group  are  named  by  the  constitution — the  superin- 
tendent of  public  works  and  the  superintendent  of  prisons.  In  neither 
case  are  any  qualifications  prescribed.  Although  the  constitution  stipu- 
lates that  the  state  engineer  and  surveyor  who  is  elected  by  popular 
vote  must  be  a  practical  civil  engineer,  it  does  not  prescribe  qualifications 
for  the  superintendent  of  public  works,  whose  duties  call  for  high  techni- 
cal and  professional  skill.  When  offices  falling  within  the  first  group  are 
created  by  legislative  action,  it  is  commonly  the  practice  to  leave  the 
determination  of  qualifications  and  fitness  of  incumbents  wholly  to  the 
officer  empowered  to  select  them. 

38 


TT      SHOWING   THE   DIFFERENT   METHODS    PRESCRIBED    BY   LAW   FOR 
Chakt   "-SHOWING^THE   D^^^^   ^^  DEPARTMENTS,  OFFICES,  BOARDS  AND 

COMMISSIONS. 


KEY  TO  CHART  11.— SHOWING  THE  DIFFERENT  METHODS  OF  REMOVAf  PRF 
!^TR\^'*ON»T»P^P&E«*i?l^^.  ^^^^^^^^    B^'NG  LS^E^IoT  I^F^eTe1^Ce''«/o 

REMOVED  SEN.   RECOMIVIEND.  GOV. 
I 

1 — Dept.  Efficiency  and  Economy 
2— Banking  Dept. 
3 — Insurance  Dept. 
4 — Dept.  Excise 
5— State  Dept.  Health 
6— Health  Officer  Port  N.  Y. 
7 — Dept.  Labor 
S— Dept.  State  Fire  Marshal 
9 — Dept.  Agriculture 
10 — Dept.  Architecture 

II 
1 — Saratoga  Springs  State  Reserv.  Commn. 
2 — Watkins  Glen  Reservation  Commn. 
3— Palisades  Inter-State  Park  Commn. 
4 — Commn.  Prom.  Uniformity  Legis.  U.  S. 
5 — State  Civil  Service  Commn. 
6 — Commn.  State  Reservation  (Niagara) 
7 — Newtown  Battlefield  Commn. 
8 — State  Hospital  Commn. 
Ill 
1— Bd.  Claims 
2 — Bd.  Tax  Commissioners 

g i  Bd.  Mgrs.  Reformatory  (Elmira) 

I  Bd.  Mgrs.  East.  N.  Y.  Reform.  (Napanoch) 
4— Bd.  Mgrs.  Agr.  and  Indust.  Sch.  (Industry) 
5— Bd.  Mgrs.  School  for  Blind  (Batavia) 
6 — Bd.  Trust.  Washington's  H'dq't'rs  (Newburgh) 
7 — Bd.  Trust.  College  of  Forestry  (Syracuse) 
REMOVED  BY  REPEAL  OF  ACT  APPTG. 
IV 
1— Bd.  Estimate 
2— State  Printing  Bd. 
3 — State  Bd.  Canvassers 
4 — State  Bd.  EquaUzation 
5— State  Bd.  Classification 
6 — Bd.  Retirement  State  Hospital  Employees 
7— Canal  Bd. 
S— Trustees  Public  Buildings  (Bd.) 

V 
1 — Curtis  Monument  Commn. 
2 — Irish  Brigades  Monument  Commn. 
3 — Salary  Classification  Conamn. 
4 — Builchng  Improvement  Commn. 
5 — Commn.  Sites,  Grounds,  Bldgs. 
6 — Commissioners  Canal  Fund 
7 — Commissioners  Land  Office 
S — Battleship  "New  York"  Silver  Serv.  Commn. 
RMVD.  PT  REPEAL  ACT  APPTG.    P'T  GOV.  (THO 
APPTD.  OTHERWISE) 
VI 
1— Bd.  Gov.  State  Nautical  School 
2— Bd.Mgrs.Soc.Ref.Juv.Del.N.Y.C.  (Randall's  Is.) 
REMOVED  GOV.  (THOUGH  APPTD.  OTHERWISE) 

1 — Prison  Dept. 

2— Dept.  Pubhc  Wks. 

3— Dept.  Highways 

YIII 

1— State  Bd.  Port  Wardens 

2— State  Bd.  Pub.  Charities 

3— Bd.  Mgrs.  West.  Home  Refuge  Women  (Albion) 

4 — Bd.  Mgrs.  Reformatory  Women  (Bedford) 

5— Bd.  Mgrs.  Train.  Sch.  Girls  (Hudson) 

6— Bd.  Mgrs.  Indust.  Farm  Colony  (Green  Haven) 

7— Bd.  Mgrs.  Train.  Sch.  Boys  (Yorktown  H'ghts) 

8 — Bd.  Mgrs.  Reform.  Misdemeanants 

9— Bd.  Mgrs.  Rome  Custodial  Asylum 
10— Bd.  Mgrs.  Cust.Asy.F'blemindedWomen(Newark) 
11— Bd.  Mgrs.  Letch  worth  Village  (Thiells) 
12— Bd.  Mgrs.  Syr.  Inst.  F'bleminded  Children 
13— Bd.  Mgrs.  Craig  Colony  Epileptics  (Sonyea) 
14— Bd.  Mgrs.  Hosp.  Care  Crippled  Children 
15 — Bd.  Mgrs.  Hosp.  Treatment  Ineip.  Tuberc. 
16— Bd.  Mgrs.  Women's  ReUef  Corps  Home  (Oxford) 
17— Bd.  Mgrs.  Thomas  Indian  Sch.  (Iroquois) 
18— Bd.  Mgrs.  Utica  State  Hosp. 
19— Bd.  Mgrs.  Willard  State  Hosp. 
20— Bd.  Mgrs.  Hudson  River  State  Hosp. 
21 — Bd.  Mgrs.  Middletown  State  Homeo.  Hosp. 
22— Bd.  Mgrs.  Buffalo  State  Hosp. 
23 — Bd.  Mgrs.  Binghamton  State  Hosp. 
24 — Bd.  Mgrs.  St.  Lawrence  State  Hosp. 
25— Bd.  Mgrs.  Rochester  State  Hosp. 
26— Bd.  Mgrs.  Gowanda  State  Homeo.  Hosp. 
27— Bd.  Mgrs.  Mohansic  State  Hosp. 
28— Bd.  Mgrs.  Long  Island  State  Hosp. 
29— Bd.  Mgrs.  Kings  Park  State  Hosp. 
30— Bd.  Mgrs.  Manhattan  State  Hosp. 
31— Bd.  Mgrs.  Central  Islip  State  Hosp. 


IX 

1— Commn.  Investigate  Housing  Cities  2nd  CI. 

2— Fire  Island  State  Park  Commn. 

3 — Pubhc  Service  Commn.  (1st  Dist.) 

4— Pubhc  Service  Commn.  (2nd  District.) 

5 — State  Commn.  Prisons. 

6 — Conservation  Dept.  (Commn.) 

7 — Joint  Pur.  Comm.  Char.  Inst. 

X 
1— State  Supt.  Elections 
2— Fiscal  Supervisor  State  Charities 

RMVD.  P'T  RPL.  ACT  APPTG.    PT  SEN.  REC.  GOV. 
XI 

1— Bd.  Trust.  State  Sch.  Agr.  (MorrisviUe) 

2— Bd.  Control  State  Sch.  Agr.  Dom.  Sc.  (Delhi) 

3— Bd.  Parole  State  Prisons 

4— Bd.  Trust.  Soldiers  and  Sailors  Home  (Bath) 

xn 

1— N.  Y.  State  Fan-  Commn. 

RMVD.  P'T  REPEAL  ACT  APPTG.    P'T  AS  APPTD 

XIII 
1— Bd.  Trust.  Inst.  Study  Mahgnant  Diseases 
2— Bd.  Trust.  State  Agr.  Exp.  Sta.  (Geneva) 
3— AdWs.  Bd.  Promotion  Agr. 
4— Bd.  Trust.  Schoharie  State  Sch.  Agr. 
5 — State  Bd.  Geographic  Names 

XIV 
1 — N.  Y.  State  Factory  Investigating  Conman. 
2— Perry  Victory  Centennial  Commn. 
3— N.  Y.  Monum't  Comm.  Gettysb'g,  Chatt.  Antietam 
4 — N.  Y.  Bridge  and  Tunnel  Commn. 
5— State  Probation  Commn. 

XV 
1— Mihtia  (Maj.  Gen.) 

REMOVED  AS  APPOINTED 

XVI 

1— Dept.  Pub.  Bldgs.  (Supt.) 
XVII 

1 — Bd.  Statutory  ConsoUdation 

2 — Bd.  Embalming  Examiners 

3 — Bd.  Exam.  Feebleminded,  Criminal,  other  Def. 

4 — Bd.  Trust.  Schuyler  Mansion 

5— Bd.  Trust.  State  Sch.  Agr.  (Long  Island.) 

6 — State  Bd.  Law  E.xaminers. 
XVIII 

1— Bronx  Parkway  Commn. 

2 — Workmen's  Compensation  Commn. 

3— Commner.  Index  Session  Laws 

4 — Commn.  Fed.  Legis.  Alien  Insane 

5 — Commn.  Invest.  Port  Cond.  N.  Y.  Harbor 

6 — Voting  Machine  Commn. 

7 — State  Racing  Commn. 

8— N.  Y.  State  Athletic  Commn. 

9 — Commn.  for  Blind 
10 — Commn.  Investigate  Prov.  Ment.  Def. 
11 — Ketchum  Memorial  Commn. 
12 — Const.  Conv.  Commn. 
13 — Commn.  Revise  and  Codify  Tax  Laws 
14— 25th  N.  Y.  Vol.  Cav.  Mon.  Comm. 
15 — Panama-Pacific  Exp.  Commn. 
16 — Treaty  Ghent  Commn. 
XIX 

1 — Sing  Sing  Prison 

2 — Auburn  Prison 

3— Clinton  Prison 

4 — Great  Meadow  Prison 

5 — State  Farm,  Women  (Valatie) 

6 — Dannemora  State  Hosp.  Insane  Comicts 

7 — Matteawan  State  Hosp.  Insane  Criminals 

8— Dir.  Psychiatric  Inst. 

9 — State  Supt.  Weights  and  Measures 
10 — Miscellaneous  Reporter 
1 1 — Harbor  Masters 

12 — Spcl.  Examiner,  Appraiser  Canal  Lands. 
13— State  Reporter 
14 — Supreme  Court  Reporter 

REMOVAL  PROVISION  NOT  SPECIFIED 
XX 

1— Bd.  Regents  (Ed.  Dept.) 

XXI     , 
1 — Am.  Scenic  and  Hist.  Preserv.  Soc. 
2— N.  Y.  State  Hist.  Asso. 
3 — German-American  Alliance 
4— Comm.  D.  A.  R.,  N.  Y.  State       -- 
5 — Mahwenawasigh  Chapter  D.  A.  R 
6 — Mt.  McGregor  Memorial  Asso. 
7 — ^Johnstown  Hist.  Soc. 
S^Custodian  Saratoga  Monument 


38b 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


Prescriptions  of  Merit  System  Defective 

The  main  body  of  appointed  civil  servants  who  fall,  of  course,  within 
the  second  group  mentioned  above,  are  subject  to  the  provisions  of  Art. 
V,  Sec.  9,  so  far  as  qualifications  and  fitness  are  concerned.  This  article 
stipulates  that : 

Appointments  and  promotions  in  the  civil  service  of  the  state  *  *  * 
shall  be  made  according  to  merit  and  fitness,  to  be  ascertained,  so  far  as 
practicable,  by  examinations,  which,  so  far  as  practicable,  shall  be  com- 
petitive; provided,  however,  that  honorably  discharged  soldiers  and  sailors 
from  the  Army  and  Navy  of  the  United  States  in  the  late  Civil  War,  who 
are  citizens  and  residents  of  this  state,  shall  be  entitled  to  preference  in 
appointments  and  promotions  without  regard  to  their  standing  on  any  Hst 
from  which  said  appointments  or  promotions  may  be  made.  Laws  shall  be 
made  to  provide  for  the  enforcement  of  this  section. 

Limited  to  "  Examinations  "  as  a  Test  for  Promotion 

It  will  be  seen  from  the  provision  that  the  test  of  qualifications 
and  fitness  for  appointment  and  promotion  here  established  is,  so  far  as 
practicable,  that  of  the  competitive  examination.  Experience  under 
this  constitutional  requirement,  while  in  many  respects  highly  satis- 
factory, has  raised  grave  doubts  as  to  the  desirability  of  limiting  the 
judgment  of  comparative  merits  to  the  results  of  "  examinations."  The 
term  "  examinations  "  has  usually  been  construed  broadly  by  the  courts 
to  cover  inquiries  and  tests  which  are  not  strictly  in  the  nature  of  ex- 
aminations as  commonly  understood ;  but  in  practice  the  term  has  often 
been  used  narrowly.  Inasmuch  as  there  is  an  increasing  tendency  to  rely 
on  educational  and  professional  training  and  practical  experience  in  de- 
termining the  qualification  of  candidates,  the  question  is  raised  whether 
the  language  of  the  Constitution  should  not  be  made  broader  and  at  the 
same  time  more  precise. 

Gives  Soldiers  and  Sailors  Preference  IVitJioiit  Regard  to  Standing 

Certainly  there  is  grave  doubt  as  to  the  desirability  of  injecting  the 
proviso  that  certain  soldiers  and  sailors  shall  be  entitled  to  "  preference  " 
in  appointment  an^  promotion  without  regard  to  their  standing  on  any 
list.  The  welfare  of  the  state  is  quite  as  much  affected  by  efficient  civil 
service  as  it  is  by  honorable  military  service.  Furthermore,  honorable 
military  service  is  no  evidence  of  fitness  or  qualification  for  performing 
one  or  another  of  the  hundreds  of  different  kinds  of  civil  service — many 
of  which  are  highly  technical  in  character  and  require  for  their  efficient 
performance  specialized  training  and  cumulative  experience.  To  incor- 
porate in  the  constitution  a  provision  such  as  this  is  destructive  of  the 
whole  purpose  behind  the  popular  demand  that  led  up  to  the  adoption 
of  the  merit  system,  and  it  is  only  done  for  reasons  other  than  the  better- 
ment of  the  public  service.  If  soldiers  and  sailors  are  of  equal  compe- 
tence with  civilians,  they  need  no  preference.     If  they  are  not,  the  provi- 

39 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

sion  that  they  shall  be  preferred  without  regard  to  their  standing  on  any 
list  means  the  relaxation  of  discipline,  the  loss  of  faith  on  the  part  of 
oiher  employees  that  they  will  be  fairly  dealt  with,  the  loss  of  respect 
for  the  service  by  the  men  who  are  called  upon  to  do  the  work  of  the 
government,  and  the  lowering  of  the  morale  of  those  who  have  hitherto 
rendered  honorable  service. 

Makes  for  Official  Irresponsibility 

Considering  the  matter,  therefore,  from  the  point  of  view  of  justice 
to  the  public  interest,  and  to  those  who  have  spent  their  lives  in  the 
civil  service  of  the  state,  the  provision  is  equally  indefensible.  The 
federal  government  has  already  provided  hberally  for  the  soldier  and 
sjiilor  in  recognition  of  their  honorable  services.  For  similar  reasons 
the  state  looks  after  their  declining  years  by  maintaining  homes  for  them. 
If  the  state  has  further  obligations  to  those  who  have  been  retired  from 
the  military  service,  it  would  be  better  for  the  military  service  and  for 
the  civil  administration  if  the  government  should  frankly  grant  to  such 
soldiers  and  sailors  pensions  to  equal  the  salaries  they  draw,  than  to 
continue  the  policy  of  preference  wholly  unrelated  to  fitness  or  quality 
of  work  done.  There  can  be  no  doubt  that  such  a  preference  makes  for 
official  irresponsibility  and  for  individual  incompetency  by  setting  up  con- 
ditions that  are  incompatible  with  the  efficient  handling  of  public  business. 

Methods  of  Removal 

No  argument  is  necessary  to  show  that  the  system  of  removals  from 
office  has  as  much  influence  upon  the  efficiency  of  the  personnel  as  the 
system  of  appointment  (see  Chart  II,  p.  38a).  An  examination  of  the 
present  provisions  for  removals  shows  the  same  confusion  and  lack  of 
reasoned  purpose  which  were  found  in  the  case  of  methods  of  appoint- 
ment. The  various  methods  of  removal  now  employed  in  the  state  gov- 
ernment are  as  follows : 

1.  The  general  power  of  removal  by  impeachment  is  vested  in 

the  assembly  on  conviction  by  the  constituted  court  of 
trial  in  such  cases.  The  expense  and  unwieldy  character 
of  this  process  of  removal  make  it  useless  except  in 
cases  of  charges  against  high  officers. 

2.  The  governor  may  suspend  but  not  remove  the  treasurer  for 

violation  of  his  duty. 

3.  The  governor  may  remove  the  superintendent  of  public  works 

and  the  superintendent  of  prisons  and  some  statutory 
officers,  without  the  consent  of  the  senate. 

4.  The  governor  may  remove  a  great  majority  of  the  important 

statutory  officers  only  with  the  consent  of  the  senate. 

40 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


5.  Appointing  officers,  such  as  the  superintendent  of  pubHc  works 

and  of  prisons,  are  frequently  given  the  power  of  re- 
moving important  subordinates  summarily. 

6.  In  some  cases,  the  officer  making  removals  is  limited  to  re- 

movals for  specified  causes,  and  in  other  cases  by  general 
provisions,  such  as  the  requirements  of  the  public  in- 
terest or  the  unfitness  of  the  incumbents,  and  in  still 
other  cases  by  no  restrictions  susceptible  of  precise  defi- 
nition. 

7.  In  some  cases  an  officer  making  removals  must  show  specific 

causes  and  give  the  person  whose  removal  is  sought  an  op- 
portunity to  be  heard ;  in  other  cases  a  statement  of  the 
reasons  for  the  removal  of  an  officer  must  be  filed  some- 
where as  a  matter  of  record  only,  without  affording  the 
person  removed  an  opportunity  to  be  heard. 

Not  Consistent  with  Provisions  Governing  Appointments 

In  order  to  illustrate  graphically  the  system  of  appointments  and 
removals,  so  far  as  the  definition  and  enforcement  of  responsibility  are 
concerned,  a  third  chart  has  been  prepared  which  is  designed  to  show 
both  these  relations  (p.  42).  On  this  chart  the  methods  of  removal  are 
shown  at  the  bottom  of  the  lines  running  to  symbols  showing  sixteen 
different  methods  of  appointment.  To  show  these  in  combination,  by  a 
more  general  grouping,  Chart  IV,  p.  44a,  has  also  been  prepared.  Ref- 
erence is  made  to  the  same  list  of  departments  and  offices  as  far  as  the 
methods  of  removals  could  be  ascertained  within  the  time  available. 

Provisions  Relative  to  the  Tenure  of  Public  Agents 

In  seeking  to  secure  responsiveness,  responsibility  and  efficiency  in 
government,  the  matter  of  the  tenure  of  public  agents  becomes  of  prime 
importance,  and  calls  for  consideration  with  reference  to  constructive 
standards  rather  than  the  idea  of  preventing  usurpation  on  the  part  of 
a  hereditary  monarch. 

Responsiveness  required  that  the  government  should  accurately 
reflect  popular  opinion  on  all  fundamental  matters.  Changes  in  that 
opinion  will  have  no  necessary  relation  to  the  rotation  of  the  earth 
on  its  axis  or  around  the  sun,  and  to  secure  responsiveness,  therefore, 
it  is  not  imperative  that  elections  should  be  held  every  year  or  every 
two  years.  If  a  government  truly  represents  the  electorate,  there  is  no 
theoretical  reason  why  it  should  be  subjected  to  the  interruption  incident 
to  a  campaign  or  the  course  of  industry  and  business  should  be  disturbed 
by  an  election  which  leaves  the  same  party  in  power. 

41 


Chart    III.— SHOWING    LACK   OF    CORRESPONDENCE    OF    METHODS    OF   APPOINT- 
MENT AND  REMOVAL   PRESCRIBED   BY  LAW. 


KEY  TO  CHART  III.— SHOWING  LACK  OF  CORRESPONDENCE  BETWEEN  APPOINT- 
MENT AND  REMOVAL.  THE  HEAVY  FACED  NUMBERS  REFER  TO  LINES  ON 
CHART  ABOVE. 


APPTD.  BY  SUB.  ORG.  UNITS  OR  HEADS 
1— Removed  as  appointed 

1— Sing  Sing  Prison 

2 — Auburn  Prison 

3 — Clinton  Prison 

4 — Great  Meadow  Prison 

5 — State  Farm  Women  (Valatie) 

6 — Dannemora  State  Hosp.  Insane  Convicts 

7 — Matteawan  State  Hosp.  Insane  Criminals 

8— Dir.  Psychiatric  Inat. 


APPTD.  GOV.  W.  ADV.  &  CONS.  SEN. 
2— Removed  p't  by  r'p'l  act  apptg.  pt  as  apptd. 

1 — Dept.  EfficienL'y  and  Economy 

2 — Banking  Dept. 

3 — Insurance  Dept. 

4 — Dept.  Excise 

5— State  Dept.  Health 

6— Health  Officer  Port  of  N.  Y. 

7 — Dept.  Labor 

8— Dept.  State  Fire  Marshal 


42 


9— Dept.  Agriculture 
10— Dept.  Architecture 
11 — Saratoga  Springs  State  Reserv.  Commn. 
12 — Watkins  Glen  Reserv.  Commn. 
13— Palisades  Interstate  Pk.  Commn. 
14— Commn.  Prom.  Uniformity  Legis.  U.  S. 
15 — State  Civil  Service  Commn. 
Ill — Commn.  State  Reserv.  (Niagara) 
17 — Newtown  Battlefield  Commn. 
18 — State  Hosp.  Commn. 
19— Bd.  Claims 
20 — Bd.  Tax  Commissioners 

21 J  Bd.  Mgrs.  Reformatory  (Elmira) 

I  Bd.  Mgrs.  East  N.  Y.  Reformatory  (Napanoch) 
22 — Bd.  Mgrs.  Agr.  and  Industr.  Sch.  (Industry) 
23— Bd.  Mgrs.  Sch.  Blind  (Batavia) 
24— Bd.  Trust.  Washington  H'dq'frs  (Newburgh) 
3— Removed  as  appointed 
1— Prison  Dept. 
2— Dept.  Public  Works 
3 — Dept.  Highways 
4— Fire  Island  State  Park  Commn. 
5— Public  Service  Commn.  (1st  Dist.) 
0 — Public  Service  Commn.  (2nd  Dist.) 
7— State  Commn.  Prisons 
8 — Conservation  Dept.  (Commn.) 
9-State  Bd.  Port  Wardens 
lO-State  Bd.  Public  Charities 
11— Bd.  Mgrs.  West.  Home  Refuge  Women  (Albion) 
12 — Bd.  Mgrs.  Reformatory  Women  (Bedford) 
13 — Bd.  Mgrs.  Training  School  Girls  (Hudson) 
14 — Bd.  Mgrs.  Indust.  Farm  Colony  (Green  Haven) 
15— Bd.  Mgrs.  Train.  School  Boys  (Yorkt'n  H'ghts) 
16— Bd.  Mgrs.  Reformatory,  Misdemeanants 
17— Bd.  Mgrs.  Rome  Custodial  Asylum 
18 — Bd.  Mgrs.  Cust.  Asy.  F'blem'ded  Women  (Newark) 
19— Bd.  Mgrs.  Letchworth  Village  (Thiells) 
20— Bd.  Mgrs.  Inst.  Feebleminded  Children 
21— Bd.  Mgrs.  Craig  Colony  Epileptics  (Sonyea) 
22— Bd.  Mgrs.  Hosp.  Care  Crippled  Children 
23 — Bd.  Mgrs.  Hosp.  Treat.  Incip.  Tuberculosis 
24— Bd.  Mgrs.  Women's  Relief  Corps  Home  (O.xford) 
25 — ^Bd.  Mgrs.  Thomas  Indian  Sch.  (Iroquois) 
26-Bd.  Mgrs.  Utica  State  Hosp. 
27— Bd.  Mgrs.  Willard  State  Hosp. 
28— Bd.  Mgrs.  Hudson  River  State  Hosp. 
29 — Bd.  Mgrs.  Middletown  Homeo.  State  Hosp. 
30— Bd.  Mgrs.  Buffalo  State  Hosp. 
31— Bd.  Mgrs.  Binghamton  State  Hosp. 
32— Bd.  Mgrs.  St.  Lawrence  State  Hosp. 
33— Bd.  Mgrs.  Rochester  State  Hosp. 
34 — Bd.  Mgrs.  Gowanda  State  Homeo.  Hosp. 
35 — Bd.  Mgrs.  Mohansic  State  Hosp. 
36 — Bd.  Mgrs.  Long  Island  State  Hosp. 
37— Bd.  Mgrs.  Kings  Park  State  Hosp. 
38— Bd.  Mgrs.  Manhattan  State  Hosp. 
39— Bd.  Mgrs.  Central  Islip  State  Hosp. 
40— State  Supt.  Elections 
41— Fiscal  Supervisor  State  Charities 
4-RIVIVD.  GOV.  (THO.  APPTD.  OTHERWISE) 
1 — Militia  (Maj.  Gen.) 
2— Bd.  Trust.  State  Agr.  Exp.  Sta.  (L.  I.) 
5— Rmvd.  sen.  rec.  gov. 

1 — Bronx  Parkway  Commn. 
2 — State  Supt.  Weights  and  Measures 
APPTD.  PT  JOINT  LEGIS.,  PT  EX-OFF. 
6— Rmvd.  p't  rp'l  act  apptg.   p't  as  apptd. 

1— Bd.  Trust.  Inst.  Study  Malig.  Diseases 
APPTD.  GOV.,  ASSEMB.,  SEN. 
7 — Rmvd.  p't  by  rp'l  act  apptg.  p't  as  apptd. 

1 — Commn.  Invest.  Housing  Cond.  Cities  2nd  CI. 
8 — Removed  as  appointed 

1 — N.  Y.  State  Factory  Investigating  Commn. 
9 — Rmvd.  gov.  alone  (tho.  apptd.  otherwise) 
1 — Panama-Pacific  Exp.  Commn. 
2 — Treaty  Ghent  Commn. 
APPTD.  JOINT  LEGIS.  APPR.  GOV. 
10— Rmvd.  rp'l  act  apptg. 

1 — Curtis  Monument  Commn. 
2 — Irish  Brigades  Monument  Commn. 
APPTD.  JOINT  LEGIS. 
11 — Removed  as  appointed 

1 — Bd.  Statutory  Consolidation 
12 — No  removal  provision  specified 

1 — Am.  Scenic  and  Hist.  Preserv.  Soc. 
2— N.  Y.  State  Hist.  Asso. 
3 — German-American  Alliance 
4— Comm.  D.  A.  R.,  N.  Y.  State 
5 — Mahwenaswasigh  Chap.  D.  A.  R. 
6 — Mt.  McGregor  Memorial  Asso. 
7 — Johnstown  Hist.  Soc. 
S— Bd.  Regents  (Ed.  Dept.) 


APPTD.  P'T  GOV.,  ASSEIVIB.,  SEN.,  P'T  EX-OFF. 
13— Rmvd.  p't  by  r'p'l  act  apptg.  p't  as  apptd. 

1 — Perry  Victory  Centennial  Commn. 
APPTD.  P'T  GOV.  ADV.  CONS.  SEN.  PT  EX-OFF. 
14— Rmvd.  p't  by  r'p'l  act  apptg.  p't  by  sen  on  rec.  gov. 
1— Bd.  Trust.  State  Sch.  Agr.  (Mornsville) 
2— Bd.  Control  State  Sch.  Agr.  and  Dom.  Sci.  (Delhi) 
3— Bd.  Parole  State  Prisons 
4— Bd.  Trust.  Soldiers  and  Sailors  Home  (Bath) 
15 — Removed  as  appointed 

1 — Workmen's  Compensation  Commn. 
APPTD.  PT  GOV.,  IVIAYOR  N.  Y.,  P'T  EX-OFF. 
16— Rmvd.  p't  r'p'l  act  apptg.  p't  as  apptd. 
1— N.  Y.  Bridge  and  Tunnel  Commn. 
APPTD.  GOV.  ALONE 
17— Removed  as  appointed 

1 — Voting  Machine  Commn. 
2 — State  Racing  Commn. 
3— N.  Y.  State  Athletic  Commn. 
4 — Commn.  for  Bhnd 
5 — Commn.  Invest.  Prov.  Mentally  Def. 
6 — Ketohum  Memorial  Commn. 
7 — Commissioner  Index  Session  Laws 
8 — Commn.  Fed.  Legis.  Alien  Insane 
9 — Commn.  Invest.  Port  Conditions  N.  Y.  Harbor 
10 — Bd.  Embalming  Examiners 
11— Bd.  E.xam.  F'blem'ded  Criminal,  other  Def. 
12 — Bd.  Trust.  (Schuyler  Mansion) 
13 — Miscellaneous  Reporter 
14 — Harbor  Masters 

15 — Spcl.  Exam,  and  Appraiser  Canal  Lands 
APPTD.    P'T    BY    GOV.,   STATE    B'D    CHAR.,     PRIS 

COMM.  PT  EX-OFF. 
18— Rmvd.  p't  r'p'l  act  apptg.  p't  as  apptd. 

1 — State  Probation  Commn. 
APPTD.  P'T  GOV.,  P'T  EX-OFF. 
19 — Rmvd.  p't  r'p'l  act  apptg.  p't  sen.  rec.  gov. 

1— Bd.  Trust.  State  Coll.  Forestry  (Syracuse) 
20— Rmvd.  p't  r'p'l  act  apptg.  p't  as  apptd. 

1 — Bd.  Gov.  State  Nautical  School 
21— Removed  as  appointed 

1— N.  Y.  State  Fair  Commn. 
22— Rmvd.  sen.  rec.  gov. 

1 — Adv.  Bd.  Promotion  Agr. 
2 — Bd.  Trust.  Schoharie  State  Sch.  .'Vgr. 
3 — State  Bd.  Geographic  Names 
4— N.  Y.  Mon.  Comm.  Gettysb'g,  Chatt.,  Antietam 
23— Rmvd.  p't  r'p'l  act  apptg.  p't  gov.  (tho.  apptd.  otherwise 
1— Bd.  Trust.  State  Sch.  Agr.  (L.  I.) 
2 — Const.  Conv.  Conmin. 
3 — Commn.  Revise  and  Codify  Tax  Laws 
4 — 25th  N.  Y.  Vol.  Cav.  Monument  Commn. 
APPTD.FISC.  SUPVSR.:  SUPT.  AS  CHRM'N.  CH'RMN 
APPTS.    2    STWRDS.,    ANN.     MEET.    SUPTS. 
APPTS.    3    OWN     M'B'RS. 
24— Rmvd.  gov.  (tho.  apptd.  otherwise) 

1 — Joint  Pur.  Comm.  Charitable  Inst. 
WHOLLY  EX-OFFICIO 
25— Removed  as  appointed 
1 — Bd.  Estimate 
2 — State  Printing  Bd. 
3 — State  Bd.  Canvassers 
4 — State  Bd.  EquaUzation 
5 — State  Bd.  Classification 
6 — Bd.  Rethement  State  Hosp.  Employees 
7— Canal  Bd. 

8— Trust.  Public  Bldgs.  (Bd.) 
9 — Salary  Classification  (iommn. 
10 — Building  Improvement  Commn. 
11 — Commn.  Sites,  Grounds,  Buildings 
12 — Commissioners  Canal  Fund 
13 — Commissioners  Land  Office 
14 — Battleship  "New  York"  Silver  Service  Commn. 
26 — Rmvd.  repeal  act  apptg. 

1— Dept.  Public  Bldgs.  (Supt.) 
27 — No  rmvl.  prov.  specified 

1 — Custodian  Saratoga  Monument 
SELF-PERPET.  P'T  (NON-STATE  OFF.)    PT  EX-OFF. 
28— Rmvd.  p't  r'p'l  act  apptg.  p't  gov.  (tho.  apptd.  othewise) 
1— Bd.  Mgrs.  Soc.  Ref.  Juv.  Del.  N.Y.C.  (Randall's  la.) 
APPOINTED  COURT  APPEALS 
29— Removed  as  appointed 

1 — State  Bd.  Law  Examiners 
2 — State  Reporter 
APPTD.  APPELLATE  DIV.  SUPREME  COURT 
30— Removed  as  appointed 

1 — Supreme  Court  Reporter 


43 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Frequent  Elections 

The  practical  objection,  however,  is  that  it  is  difficult  to  discover 
when  any  particular  government  accurately  represents  public  opinion 
and  that  if  some  authority  were  vested  with  the  power  of  deciding  when 
an  election  should  be  held  it  could  readily  enter  into  ways  of  usurpation. 
Indeed,  it  was  this  practical  objection  which  led  the  founders  of  American 
governments  to  adopt  the  principle  of  "  frequent  elections."  Previous  to 
the  Revolution,  the  tenure  of  the  governors  in  the  royal  colonies  was  at 
the  king's  pleasure  and  those  governors  had  the  power  of  dissolving  the 
assemblies  and  calling  new  elections.  When  the  royal  element  was 
eliminated  and  elected  governors  were  created,  the  fear  of  the  royal 
executive  which  formerly  entertained  was  carried  over  to  the  elected 
executive,  and  the  power  of  appealing  to  the  voters  to  ascertain  popular 
will  at  any  one  time  was  taken  away  altogether.  Lest  usurpation  might 
occur,  it  was  thought  better  to  risk  the  waste  of  frequent  elections  which 
resulted  in  no  material  changes  rather  than  to  invite  the  dangers  incident 
to  long  possession  of  power. 

Longer  Tenure  and  Provision  for  Reference  of  Issues  to  Electorate 

As  confidence  in  democracy  advanced,  however,  it  was  seen  that  the 
fear  of  the  executive  which  had  been  entertained  when  he  was  a  royal 
officer  was  unfounded  when  he  was  elected  by  popular  vote.  Accordingly, 
the  term  of  the  governor  was  quite  generally  increased  from  one  year  to 
two  and  in  many  instances  to  four  years,  although  in  New  York  it  has 
been  reduced  from  three  to  two.  It  w'ould  seem  that  by  this  time  confi- 
dence of  democracy  in  its  own  capacity  for  self  government  had  advanced 
far  enough  to  grant  to  elected  officers  and  agents  of  the  government  four 
year  terms,  particularly  if  a  method  is  provided  for  getting  issues  on  which 
there  is  a  deadlock  before  the  people  by  call  of  the  executive  or  other 
means  of  "  recall."     (See  below,  p.  79.) 

Present    Tenures   Not    Consistent   with    Requirements    of   Responsive, 
Responsible  and  Efficient  Government 

At  all  events,  from  the  point  of  view  of  responsiveness,  the  present 
constitution  which  gives  to  the  senators  and  the  governor  a  two  years' 
term  and  to  the  assembly  a  term  of  a  single  year  is  indefensible.  It  was 
not  devised  for  the  purpose  of  making  the  government  responsive  but 
to  prevent  it  from  being  immediately  responsive.  The  senate  was 
originally  a  class  body  representing  the  landed  class  of  the  state,  and  it 
was  given  a  longer  term  in  order  to  endow  it  with  greater  weight  against 
the  more  popular  house,  the  assembly.  When,  however,  the  two  houses 
were  placed  on  the  same  basis  as  to  the  suffrage  (see  above,  p.  18),  this 
reason  disappeared,  but  the  longer  term  was  preserved  in  order  to  prevent 

44 


Chart  IV.— SHOWING  PRESCRIBED  METHODS  OF  APPOINTMENT  AND  REMOVAL. 
GROUPED  TO  BRING  OUT  THE  INTERMINGLING  OF  RESPONSI- 
BILITY OF  THE  GOVERNOR,  THE  LEGISLATURE  AND  OTHER 
OFFICERS. 


44a 


KEY  TO  CHART  IV.~SHOWING  METHODS  OP  APPOINTMENT  AND  REMOVAL 
REGROUPED  TO  SHOW  INTERMINGLING  OF  RESPONSIBILITY.  KEY  TO 
SYMBOLS  AND  LINES  APPEARS  ON  CHART  PAGE  44a.  NUMBERS  REFER  TO 
SAME  CHART. 


1 — Bd.  Estimate 

2 — State  Printing  Bd. 

3 — State  Bd.  Canvassers 

4 — State  Bd.  Equalization 

5 — State  Bd.  Classification 

6 — Bd.  Retirement  State  Hosp.  Employees 

7— Canal  Bd. 

8— Trust.  Public  Bldgs. 

9 — Dept.  Public  Bldgs. 
10 — Dept.  Efficiency  and  Economy 
11 — Banking  Dept. 
12 — Insurance  Dept. 
13 — Dept.  Excise 
14 — State  Dept.  Health 
15— Health  Officer  Port  N.  Y. 
16 — Dept.  Labor 
17 — Dept.  State  Fire  Marshal 
18 — Dept.  Agriculture 
19 — Prison  Dept. 
20 — Dept.  Architecture 
21— Dept.  Public  Works 
22 — Dept.  Highways 
23— Bd.  Claims 
24 — Bd.  Tax  Commissioners 
25 — State  Bd.  Port  Wardens 
26 — Bd.  Trust.  State  Sch.  Agr.  (Morrisville) 
27— State  Bd.  Public  Char. 

28— Bd.  Cont.  State  Sch.  Agr.,  Dom.  Sc.  (Delhi) 
29 — Bd.  Mgrs.  Cust.  Asy.  F'bleminded  Women 

(Newark) 
30— Bd.  Mgrs.  Letchworth  Village  (Thiells) 
31 — Bd.  Trust.  Soldiers  &  Sailors  Home  (Bath) 
32 — Bd.  Trust.    Women's    Relief    Corps    Home 

Oxford 
33 — Bd.  Parole  State  Prisons 
34 — Bd.  Mgrs.  Utica  State  Hosp. 
35 — Bd.  Mgrs.  Willard  State  Hosp. 
36 — Bd.  Mgrs.  Hudson  River  State  Hosp. 
37 — Bd.  Mgrs.  Middletown  State  Homeo.  Hosp. 
38 — Bd.  Mgrs.  Buffalo  State  Hosp. 
39 — Bd.  Mgrs.  Binghamton  State  Hosp. 
40 — Bd.  Mgrs.  St.  Lawrence  State  Hosp. 
41 — Bd.  Mgrs.  Rochester  State  Hosp. 
42 — Bd.  Mgrs.  Gowanda  State  Homeo.  Hosp. 
43 — Bd.  Mgrs.  Mohansic  State  Hosp. 
44 — Bd.  Mgrs.  Kings  Park  State  Hosp. 
45 — Bd.  Mgrs.  Long  Island  State  Hosp. 
46 — Bd.  Mgrs.  Manhattan  State  Hosp. 
47 — Bd.  Mgrs.  Central  Islip  State  Hosp. 
48 — Bd.    Trust.    Washington    Hdqrtrs.     (New- 
burgh) 
49 — Commn.  Invest.  Housing  Cond.  Cities  2nd 

CI. 
50 — State  Fair  Commn. 
51 — Commn.  Fire  Island  State  Park. 
52 — Commn.  Saratoga  Springs  State  Reserv. 
53 — State  Hosp.  Commn. 
54 — Commn.  Watkins  Glen  Reserv. 
55 — Commn.  Palisades  Interstate  Pk. 
56 — State  Civil  Serv.  Commn. 
57 — Pub.  Serv.  Commn.  (1st  Dist.) 
58 — Pub.  Serv.  Commn.  (2nd  Dist.) 
59 — Workmen's  Compensation  Commn. 
60 — Couserv.  Commn. 
61 — State  Commn.  Prisons 
62 — Newtown  Battlefield  Commn. 
63 — Commn.  State  Re.serv.  (Niagara) 
64 — Perry  Victory  Centennial  Commn. 
65 — Panama-Pacific  Exp.  Commn. 
66 — Treaty  Ghent  Commn. 
67 — Curtis  Monument  Commn. 
68 — Irish  Brigades  Monument  Commn. 
69 — Commn.  Prom.  Unif.  Legis.  U.  S. 
70 — State  Supt.  Weights  and  Measures 
71 — Bd.    Mgrs.    Train.    Sch.    Boys    (Yorktown 

Hgts.) 
72 — Bd.    Mgrs.    Indust.    Farm    Colony    (Green 
Haven) 


73— Bd.  Mgrs.  Train.  Sch.  Giris  (Hudson) 

74 — Bd.  Mgrs.  Reformatory  Women  (Bedford) 

75 — Bd.     Mgrs.    West.     Home    Relief    Women 

(Albion) 
76 — Bd.  Mgrs.  Agr.  Indust.  Sch.  (Industry) 

f  Bd.  Mgrs.  East.  N.  Y.  Reformatory  (Napa- 
77— (      noch) 

(Bd  Mgrs.  Reformatory  (Elmira) 
78 — Dir.  Psychiatric  Inst. 
79 — Fiscal  Supervisor  State  Char. 
80 — Const.  Conv.  Commn. 

81 — Bd.  Mgrs.  Thomas  Indian  Sch.  (Iroquios) 
82— Bd.  Mgrs.  Hosp.  Trtmt.  Incip.  Tuberc. 
8.3— Bd.  Mgrs.  School  Blind  (Batavia) 
84 — Bd.  Mgrs.  Hosp.  Care  Crippled  Children 
85 — Bd.  Mgrs.  Craig  Colony  Epileptics  (Sonvea) 
86— Bd.  Mgrs.  Inst.  Feebleminded  Children 
87— Bd.  Mgrs.  Rome  Custodial  Asylum 
88 — Bd.  Mgrs.  Reformatory  Misdemeanants 
89 — Johnstown  Memorial  Soc. 
90 — Mt.  McGregor  Memorial  Asso. 
91 — Mawenawasigh  Chap.  D.  A.  R. 
92— Comm.  D.  A.  R.  N.  Y.  State 
93 — German- American  Alliance 
94 — Saratoga  Monument 
95 — Am.  Scenic  &  Hist.  Preserv.  Soc. 
96— N.  Y.  Bridge  &  Tunnel  Commn. 
97— Battleship     "New     York"      Silver     Serv. 

Commn. 
98 — Commissioner  Index  Session  Laws 
99— Bd.  Trust.  State  Agr.  Exp.  Sta.  (L.  I.) 

100 — State  Supt.  Elections 

101 — Bronx  Parkway  Commn. 

102 — N.-  Y.  State  Factory  Invest.  Commn. 

103 — Bd.  Trust.  Inst.  Study  Malig.  Diseases 

104— Bd.  Regents  (Ed.  Dept.) 

10.5 — Bd.  Statutory  Consol. 

106 — Ketchum  Memorial  Commn. 

107 — Commn.  Invest.  Prov.  Mentally  Def. 

108— Commn.  for  Blind 

109 — N.  Y.  State  Athletic  Commn. 

110 — State  Racing  Commn. 

Ill — Voting  Machine  Commn. 

112 — Commn.  Invest.  Port  Cond.  N.  Y.  Harbor 

113 — Commn.  Fed.  Legis.  Alien  Insane 

114— Bd.  Mgrs.  Soc.  Reform.  Juv.  Del.  N.  Y.  C. 
(Randall's  Is.) 

11.5 — Advis.  Bd.  Prom.  Agr. 

116— Bd.  Trust.  State  Coll.  Forestry  (Syracuse) 

117— Bd.  Trust.  State  Sch.  Agr.  (L.  I.) 

118 — Bd.  Trust.  Schuyler  Mansion 

119 — Bd.  Exam.    F'blem'ded,    Criminals,    Other 
Def. 

120 — Bd.  Embalming  Examiners 

121 — Sp.  Exam.  &  Appraiser  Canal  Lands 

122— Harbor  Masters 

123— Misc.  Reporter 

124 — State  Bd.  Law  Examiners 

125 — State  Reporter 

126 — Supreme  Court  Reporter 

127— 25th  N.  Y.  Vol.  Cav.  Mon.  Comm. 

128— N.    Y.    Mon.    Commn.    Gettysb'g,    Chatt., 
Antietam 

129 — Commn.  Revise  and  Codify  Tax  Laws 

130 — State  Bd.  Geographic  Names 

131 — Bd.  Gov.  State  Nautical  School 

132— Bd.  Trust.  Schoharie  State  Sch.  Agr. 

133 — N.  Y.  State  Hist.  Asso. 

134 — Salary  Classification  Commn. 

135 — Commissioners  Land  Office 

136— Commissioners  Canal  Fund 

137 — Joint  Pur.  Comm.  Char.  Inst. 

138 — Commn.  Sites,  Grounds,  Bldgs. 

139 — Bldg.  Improvement  Commn. 

140— Militia  (Maj.  Gen.) 

141 — ^State  Probation  Commn. 


44b 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


the  government  from  responding  immediately  to  a  popular  eleetion  of 
assemblymen. 

The  confusion  introduced  by  this  system  is  of  course  apparent.  If 
the  election  of  assemblymen  results  in  the  return  of  a  party  in  opposition 
to  that  in  control  of  the  senate,  friction,  irresponsibility  and,  usually, 
contemptible  petty  politics  result.  If  .the  election  of  assemblymen  returns 
to  power  the  party  in  possession  of  the  senate,  no  good  has  accrued  to 
anyone,  and  the  state  has  been  put  to  an  enormous  expense.  The  same 
reasoning  applies  to  the  introduction  of  any  diversity  of  terms  in  the  case 
of  the  governor  and  the  legislature. 

From  the  point  of  view  of  responsibihty,  it  may  be  said  that  the 
shorter  the  term  the  slighter  are  the  opportunities  for  the  incumbents  to 
learn  their  duties  and,  therefore,  the  less  the  justification  for  imposing 
any  genuine  responsibility  upon  them.  If,  however,  a  long  term  without 
possibility  of  removal  is  introduced,  the  greater  is  the  opportunity  to  shirk 
responsibility  when  power  is  once  secured.  Of  the  two  evils,  the  former, 
namely,  the  short  term,  is  open  to  the  more  serious  objection:  it  has  been 
tried  and  found  wanting.  Unless  the  new  constitution,  like  all  former 
constitutions,  is  to  be  founded  on  the  principle  of  negation,  an  experiment 
of  greater  promise,  surrounded  by  proper  safeguards,  should  be  tried. 

When  responsibility  and  efficiency  are  taken  into  consideration, 
there  is  a  special  objection  to  diversity  of  terms  within  the  executive 
department  of  the  government.  It  is  a  matter  of  common  observation  that 
no  sane  person  will  assume  responsibility  for  the  effective  conduct  of  a 
large  enterprise  if  he  has  no  power  over  the  selection  of  the  important 
subordinates  who  are  to  assist  him.  Yet,  when  a  governor  is  Inaugurated 
in  New  York,  and  undertakes  the  exercise  of  the  executive  power  vested 
in  him  by  the  constitution,  he  finds  himself  at  the  head  of  a  staff  of  officers 
already  installed  for  two,  three,  four  or  five  years,  as  the  case  may  be, 
and  able  to  resist  his  power  of  removal  in  most  instances  by  political 
combinations  in  the  senate.  So  far  as  the  constitution  is  responsible  for 
this  violation  of  the  ordinary  rules  of  business  enterprise,  it  cannot  be 
criticized  too  severely.     (See  below,  pp.  91-92.) 

This  system  of  overlapping  tenures,  so  far  as  it  is  founded  on 
principle,  is  based  on  the  theory  of  negation,  namely,  that  the  governor 
cannot  be  entrusted  with  power  adequate  to  discharge  the  trust  imposed 
in  him.  In  a  large  measure,  however,  it  is  the  result  of  accident,  tem- 
porary expedients  and  party  considerations.  Whatever  the  reason,  it  is 
incompatible  with  constructive  principles  of  government  based  upon 
practical  experience  in  the  conduct  of  private  affairs. 


45 


constitution  and  government  of  the  state 

Conditions  of  Public  Employment 
Provisions  Governing  Promotion  in  tJic  Public  Service 

In  forming  a  government  which,  it  is  hoped,  will  make  for  greater 
efficiency  in  the  public  service,  the  fundamental  task  of  providing  methods 
for  maintaining  an  administrative  personnel  of  high  quality,  requires  a 
careful  review  of  the  question  of  how  to  make  it  possible  for  able  men 
and  women  to  find  careers  in  official  life,  through  an  orderly  and  equit- 
able process  of  promotion.  That  the  shifting  of  civil  servants  to  private 
employment  is  responsible  in  a  large  measure  for  the  constant  derange- 
ment of  public  business  has  often  been  the  subject  of  remark  and  re- 
quires no  extended  comment  here.  In  searching  for  the  cause  of  that 
evil,  many  discerning  men  have  traced  it  to  the  lack  of  that  opportunity 
to  rise  in  the  service  of  the  state  which  is  afforded  in  private  life,  in  other 
words,  to  an  absence  of  proper  facilities  for  promotion  to  high  positions 
in  the  government.  This  affects  the  entire  service,  for  efficient  work 
in  the  lower  branches  is  not  to  be  expected  where  no  human  rewards  can 
accrue  from  it. 

This  continual  transfer  of  able  civil  servants  to  private  life  weakens 
administration  in  a  manner  still  more  serious ;  it  cripples  the  government 
in  dealing  with  powerful  private  agencies,  because  the  servants  of  the 
former  are  all  too  often  rewarded  by  promotions  to  the  service  of  the 
latter  when  they  are  sufficiently  pliant.  Where  the  state  must,  in  the 
exercise  of  its  police  and  other  powers,  constantly  antagonize  private 
interests,  it  can  only  hope  to  perform  its  tasks  well  by  possessing  a  body 
of  loyal  officers  and  employees  who  look  to  the  public  service  for  their 
careers  and  not  to  private  employments.  The  changed  circumstances 
of  modern  economic  life,  therefore,  require  that  the  government  shall 
have  a  body  of  trained  servants  whose  first  loyalty  through  a  life  career 
is  to  the  state  and  not  to  private  interests.  In  order  to  establish  and 
maintain  this  body,  provisions  must  be  made  for  a  system  of  promotions 
that  will  quickly  reward  loyal  and  efficient  service  to  the  state.  In  the  face 
of  such  a  problem,  the  mere  provision  that  promotions,  so  far  as  prac- 
ticable, shall  be  based  on  examinations  is  pitiably  inadequate. 

The  civil  service  reform  movement,  when  launched  nearly  half 
a  century  ago,  was  primarily  negative  in  character.  It  was  concerned 
with  the  "  overthrow  of  the  spoils  system,"  to  use  the  favorite  slogan  of 
the  time.  It  has  only  been  within  the  last  few  years  that  a  constructive 
ideal  has  begun  to  appear  in  the  study  and  formulation  of  a  complete 
program  for  surrounding  the  official  personnel  of  the  government  with 
those  conditions  which  not  merely  prevent  partisan  evils,  but  are  at  the 
same  time  conducive  to  the  highest  standards  of  responsive  and  efficient 
government.  This  constructive  program,  although  in  the'early  stages 
of  its  development,  is  now  occupying  the  interest  of  all  persons  who  seek 

46 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


the  establishment  of  responsive  and  efficient  agencies  of  government. 
Clearly,  therefore,  the  constitution  should  be  tested  by  the  standards  of 
a  constructive  program  rather  than  the  expedients  of  party  advantage 
combined  within  faith  in  negation. 

Provisions  Relating  to  Standards  of  Compensation 

Justice  demands  that  compensation,  the  payment  for  the  service 
rendered,  be  computed  on  the  same  standard  for  judgment  as  the  value 
of  such  service.  But  the  state  has  done  little  to  apply  this  underlying 
principle  to  the  authorized  employments  of  the  competitive  or  exempt 
branches.  Throughout  the  service  the  greatest  disparity  exists  in  the 
compensation  paid  for  similar  grades  of  work.  Those  employees  receiv- 
ing the  relatively  lower  rates  of  compensation  feel  the  inecjualities  as  a 
matter  of  personal  discrimination.  Discontent  has  resulted  and  the  morale 
of  the  service  has  been  undermined. 

Lack   of  Businesslike   Basis  for   Fixing   of   Compensation   and    Work 
Requirements 

In  the  history  of  the  state  government  there  has  never  been — and 
there  is  not  at  the  present  time — an  exact  logical  basis  for  fixing  salary 
rates  or  titles  of  positions.  Standards  of  compensation  for  specified 
kinds  of  work  as  a  basis  for  making  salary  appropriations  are  unknown. 
Furthermore,  positions  are  created  for  the  most  part  without  any  defi- 
nition of  the  work  requirements  or  any  real  understanding  of  the  depart- 
mental needs  to  be  met.  Civil  service  employments  are,  from  the  viewpoint 
of  salary  standards,  in  a  chaotic  state.  The  titles  of  civil  service  posi- 
tions are  misleading.  Similar  titles  are  applied  to  positions  entirely 
different  in  character;  different  titles  are  attached  to  similar  positions. 
The  greatest  disparity  in  compensation  exists  with  respect  to  work  of 
the  same  character  or  grade.  Efficient  service  of  a  high  grade,  in  a  very 
large  number  of  instances,  receives  but  a  low  (and  inadequate)  rate  of 
compensation ;  service  of  a  low  grade  in  an  equally  large  number  of 
cases  receives  a  large  (and  excessive)  rate  of  compensation.  In  other 
words,  compensation  bears  little  reference  to  the  service  rendered. 

This  lack  of  uniformity  with  respect  to  compensation  and  lack  of 
exact  definition  of  duties  have  in  themselves  led  to  waste.  Overlapping 
of  the  jurisdiction  of  employees  within  an  office  has  resulted  in  wholly 
unnecessary  duplication  of  work.  Confusion  in  office  and  field  practice, 
inconsistencies  and  lost  motion  are  found  in  every  division  of  the  service. 
Furthermore,  these  wasteful  conditions  bear  close  relation  to  even  more 
wasteful  practices.  For  they  indicate  a  general  laxity  of  administration 
by  the  legislature  which  has  multiplied  employments  without  reference 
to  the  service  needs. 

47 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Summary  of  Principal  Defects  in  Employment  Conditions 

The  principal  defects  which  have  resulted  from  this  lack  of  a  busi- 
nesslike basis  for  fixing  compensation  and  work  requirements  may  be 
summarized  as  follows : 

1.  Lack  of  equitable  or  logical  rates  of  compensation. 

2.  Prevalence   of   misleading  titles   with   resultant   confusion   of 

work  and  wasted  effort. 

3.  Prevalence  of  unnecessary  positions  and  employments. 

4.  Want  of  due  consideration  of  all  the  conditions  relative  to  the 

welfare  and  comfort  of  employees  for  which  scientific 
management  calls. 

Summary  of  Related  Defects 

The  establishment  of  standards  of  compensation  and  proper  speci- 
fications of  duties  for  the  public  employments  is  fundamental  to  efl:ective 
civil  service  control  and  regulation.  In  the  absence  of  these  standards 
the  civil  service  commission  is  unable  to  formulate  a  program  wdiich  will 
be  of  real  value  either  to  the  management  or  the  personnel.  As  long 
as  the  above  conditions  exist  there  will  be  no  exact  basis  for  the  selection, 
promotion,  treatment  or  dismissal  of  employees. 

The  defects  in  the  present  system  of  civil  service  control  and  regu- 
lation which  have  resulted  directly  from  the  lack  of  standards  of  com- 
pensation and  specifications  of  duties  may  be  summarized  as   follows : 

1.  Lack  of  proper  basis  for  the  selection  of  employees  by  the 

civil   service  commission. 

2.  Lack  of  proper  basis  for  the  advancement  or  promotion  of 

employees  after  selection ;  lines  of  promotion  are  not 
established ;  individual  performance  is  not  appraised  and 
rated ;  no  means  are  provided  for  the  advancement  of 
an  employee  while  performing  a  certain  kind  of  work  on 
the  basis  of  seniority  and  efficiency  of  service. 

3.  Lack  of  proper  basis  for  dismissal  or  discipline  of  employees 
The  uncertainty  and  injustice  which  result  from  such  chaotic  con- 
ditions narrow  and  limit  the  outlook  of  civil  servants  wlio  feel  that  the 
civil  service  is  not  holding  out  proper  rewards  for  meritorious  service. 
As  a  result  a  condition  of  stagnation  and  indifference  prevails. 

Causes  of  Present  Conditions 

Civil  service  relationships  and  conditions  of  employments  in  the 
state  of  New  York  have  been  reached  as  a  result  of  a  development  ex- 
tending over  the  last  century.  This  development  has  not  been  along 
the  line  of  any  defined  plan  or  program.  New  employments"  have  been 
authorized  and  existing  employments  modified  as  the  functions  of  the 

48 


OFFICIAL    PERSONNEL    OF    THE    GOVERNMENT 


state  have  been  expanded.  This  expansion  represents  a  gradual  evolution 
or  transition — a  more  or  less  uncontrolled  and  inconsistent  growth  which 
has  had  very  little  reference  to  the  real  needs  of  the  service.  At  no  time 
has  there  been  a  truly  intensive  study  of  the  employment  conditions  with 
a  view  to  the  enactment  of  rules  and  the  installation  of  procedures  which 
would  place  the  public  service  on  an  economical  basis. 

It  is  true  that  during  the  last  forty  years  the  state  employment  con- 
ditions of  New  York  state  have  been  subject  to  the  regulation  and  con- 
trol of  civil  service  commissions  to  whom  have  been  entrusted  the  appli- 
cation and  enforcement  of  merit  principles.  Up  to  the  present  time, 
however,  the  primary  object  of  such  control  has  been  to  remove  abuses 
which  were  common  to  the  spoils  system.  In  this  respect  progress  has 
been  made.  But  the  positive  side  of  civil  service  control  which  contem- 
plates the  installation  of  standards  of  compensation,  entrance  and  pro- 
motional examinations  and  a  sound  basis  for  discipline,  removal  and 
retirement  has  not  been  developed  to  the  fullest  limit,  owing  to  the 
absence  of  proper  constitutional  and  statutory  provisions. 

Steps  Taken  to  Improve  Present  Conditions:  the  Senate  Committee  on 
Civil  Service 

The  Senate  Committee  on  Civil  Service  was  created  pursuant  to 
resolution  of  the  senate  under  date  of  February  15,  1915.  This  reso- 
lution provides  that  the  Committee  on  Civil  Service  should  have  juris- 
diction over  all  matters  relating  to  civil  service  control  and  regulation. 
It  may  be  said,  however,  that  one  of  the  principal  objects  and  aims  of  the 
creation  of  this  committee  was  to  study  employment  conditions  of  the 
state  civil  service  in  order  to  formulate  a  basis  for  reclassifying  civil 
service  positions  by  standardizing  salary  grades  and  rates. 

In  accordance  with  the  resolution  establishing  this  committee,  steps 
were  taken  to  assemble  data  which  could  be  used  as  a  basis  for  the  stand- 
ardization of  salaries  and  positions  of  employment  in  the  state  civil 
service.  The  information  so  collected  was  made  the  basis  of  a  pre- 
liminary report  characterizing  present  conditions  and  pointing  to  the  need 
for  further  ■  and  more  intensive  investigation.  An  appropriation  of 
$25,000,  requested  for  this  purpose,  was  made  and  the  Senate  Committee 
has  organized  an  investigating  staff  for  the  prosecution  of  this  work.  This 
committee  will  report  its  findings  and  recommendations  to  the  state 
legislature  at  the  beginning  of  the  year  1916. 


49 


CHAPTER    V 

THE   STRUCTURE   OF  GOVERNMENT,   AND  THE   POWERS, 
DUTIES  AND  LIMITATIONS  OF  OFFICERS 

Need  for  Preconception  of  Structural  Plan 

In  laying  the  foundation  for  a  government,  there  must  be  some 
preconception  of  the  kind  of  superstructure  that  is  to  be  erected.  In 
any  plan  for  the  management  of  representative  government,  as  well  as  for 
the  management  of  a  private  business,  some  definite  notion  must  be  enter- 
tained with  respect  to  the  organization  or  institutional  methods  for  deter- 
mining what  is  to  be  done  and  the  organization  or  institutional  methods 
for  doing  it.  In  fact,  ft  may  be  said  that  this  subdivision  of  duties  and 
responsibilities  is  an  essential  to  the  successful  operation  of  representative 
government.  The  prime  reason  for  separation  of  the  representative 
body  from  the  executive  is  to  provide  a  means  whereby  Lhose  who  must 
settle  questions  of  policy,  shall  have  no  direct  responsibility  for  carrying 
them  into  execution,  and  may  therefore  act  as  independent  critics  of  the 
administration.  In  other  words,  the  underlying  purpose  of  a  representa- 
tive system  is  not  merely  to  reach  decisions  with  regard  to  public  policies, 
but  also  to  provide  the  machinery  for  enforcing  responsibility  for  acts 
of  "  the  administration,"  which  means  "  executive  responsibility." 

Common  Structural  Essentials  of  a  Representative  System 

The  common  essentials  of  representative  government,  as  previously 
stated,  are  (1)  a  numerous  non-official  personnel  to  perform  the  func- 
tions of  an  "  electorate,"  and  (2)  a  "  representative  "  body  which  meets 
at  stated  times  to  discuss  questions  of  public  policy  and  reach  decisions 
by  vote  as  need  for  decisions  may  currently  rise.  The  representative 
character,  however,  does  not  determine  the  organization  or  method  for 
execution. 

Types  of  Organisation  for  Administration 

Having  provided  for  making  the  government  representative,  some 
means  must  be  adopted  for  executing  the  policies  and  carrying  on  the 
business  authorized.  The  expedients  adopted  in  the  organization  of  rep- 
resentative government  for  doing  this  work  have  been  many.  Broadly, 
organization  for  purposes  of  administration  may  be  reduced  to  three  gen- 
eral types,  viz. : 

1.  Administration  by  legislative  committee  or  commission — a  type 
in  which  the  elected  body  of  representatives  "is  made 
responsible  for  administering  the  business  either  directly 

50 


GENERAL    DISCUSSION    OF    STRUCTURE 


or  through  a  committee,  and  in  which  no  provision  is 
made  for  a  separate  executive  or  administrative  branch. 

2.  Administration  under  a  responsible  chief  executive — a  type  in 

which  both  representative  and  executive  branches  appear, 
the  chief  executive  being  looked  to  for  leadership  and 
both  branches  being  made  responsive  through  provisions 
for  submitting  irreconcilable  differences  directly  to  the 
people. 

3.  Administration  separately  organised  hut  not  under  a  responsi- 

ble chief  executive — a  type  in  which  both  an  executive 
branch  and  a  legislative  branch  appear,  without  any  pro- 
vision being  made  for  responsible  executive  leadership 
or  for  the  submission  of  irreconcilable  differences  to  the 
electorate  for  decision. 

The  Committee  or  Commission  Type 

Constitutions  or  governmental  structures  in  which  no  provision  is 
made  for  a  separate  executive  branch  are  of  two  general  classes,  viz. : 
those  which  have  been  employed  as  revolutionary  expedients  and  those 
which  have  been  adopted  for  purposes  of  local  self  government. 

Revolutionary  Expedients — English  and  American 

Of  the  first  class,  the  most  notable  have  been  those  governments  in 
which  the  supreme  power  has  been  placed  in  a  large  body  of  official  rep- 
resentatives, and  the  administration  has  been  organized  by  this  body  under 
committees  appointed  by  it,  or  has  been  left  to  other  agencies  over 
which  it  has  had  substantial  control.  Examples  of  this  form  of  organ- 
ization are  found  in  the  revolutionary  parliament  and  committees  of 
safety  in  England  from  1642  to  1659,  and  in  the  representative  bodies 
and  committees  of  safety  in  America  after  the  declaration  of  independ- 
ence and  before  the  states  were  permanently  organized. 

American  Committees  of  Safety 

Says  Hunt  in  "  The  Provincial  Councils  of  Safety  of  the  American 
Revolution  "  (pp.  9-10)  :  "  When  the  American  colonists  laid  by  the 
petition  for  the  musket  *  *  *  the  executive  attempted  to  silence  the 
insurrection  by  dissolving  the  assemblies.  But  the  people  found  other 
channels  of  expression.  Representatives  to  colonial  conventions  were 
elected  and  gradually  assumed  entire  control.  These  conventions  served 
the  purpose  of  deliberative  and  legislative  bodies  as  well  as  the  former 
assemblies  but  it  was  difficult  for  them  to  perform  executive  duties  on 
account  of  their  size.  Moreover,  it  was  impossible  to  keep  such  large 
bodies  continually  in  session  and  in  the  frequent  recesses  and  the  intervals 
between  a  dissolution  and  the  meeting  of  a  new  congress  there  was  need 

51 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

for  some  system  by  which  the  government  could  be  carried  on  without 
interruption.  It  was  to  meet  these  wants  that  the  conventions  appointed 
committees  of  safety  during  the  earher  years  of  the  revolution.  They 
served  as  the  chief  executive  *  *  *  in  the  transition  period  from 
colonial  to  state  government."  Under  the  same  circumstances  the  "  Con- 
federation and  Perpetual  Union  of  the  United  States  of  America " 
was  organized.  The  "Articles  of  Confederation"  of  the  original  thir- 
teen states  provided  that  "  the  United  States  in  congress  assembled  " 
should  have  the  sole  and  exclusive  right  of  directing  the  land  and  naval 
forces ;  and  that  the  business  of  the  confederation  should  be  administered 
by  Congress,  or  in  their  recess  by  a  "  Committee  of  the  States,"  to  con- 
sist of  one  delegate  from  each  state. 

Tiw  Failure  of  Committee  Systems 

Such  forms  of  organization  where  used  as  state  and  federal  agencies, 
have  in  every  instance  broken  down.  While  they  have  been  adapted  to 
making  the  government  responsive,  they  have  not  been  adapted  to  making 
it  responsible  for  leadership,  for  fidehty,  efficiency  and  economy.  Their 
failure  in  New  York  is  virtually  admitted  in  the  first  sentence  of  the  pre- 
amble of  the  first  constitution  of  the  state  adopted  in  1777,  which  runs 
as  follows : 

"  Whereas,  many  tj'rannical  and  oppressive  usurpations  of  the  King 
and  parliament  of  Great  Britain  on  the  rights  and  liberties  of  the  people 
of  the  American  colonies  had  reduced  them  to  the  necessity  of  introducing 
a   government   by   congresses    and   committees     ********* 

"  And,  whereas,  many  and  great  inconveniences  attend  the  said  mode 
of  government  by  congresses  and  committees,  as  of  necessity,  in  many  in- 
stances, legislative,  judicial,  and  executive  powers  have  been  vested 
therein     ******** 

"  This  convention,  therefore,  in  the  name  and  by  the  authority  of  the 
good  people  of  this  State,  doth  ordain,  determine  and  declare  that  no 
authority  shall,  on  any  pretence  whatever,  be  exercised  over  the  people  or 
members  of  this  State  but  such  as  shall  be  derived  from  and  granted  by 
them     ******* 

It  is  clear  that  the  legislative  committee  system  of  administration  was 
originally  a  mere  expedient  of  revolutionary  times.  Nevertheless,  it  has 
exercised  a  profound  influence  on  the  course  of  our  constitutional  and 
legislative  developinent,  although  it  was  avowedly  a  temporary  device  re- 
sorted to  at  a  time  when  executive  power  had  been  thrown  into  confusion 
by  armed  resistance.  Domination  of  the  adininistration  by  legislative 
committees  is  to-day  a  conspicuous  and  disastrous  feature  in  American 
government. 

The  Commission  Form  of  Government 

The  "  commission  form  of  government  "  as  the  term  is  now  under- 
stood differs  from  the  revolutionary  expedients  in  this,  that  the  represen- 

52 


GENERAL    DISCUSSION    OF    STRUCTURE 


tative  body  is  made  extremely  small,  the  thought  being  that  when  there 
are  only  a_few  membLe.r§.Jn.a  legislature,  responsibility  for  the  exercise  of 
executive  and  administrative  functions,  may  be  safely  entrusted  to  them. 
Although  several  hundred  cities  have  recently  adopted  this  form,  there 
is  grave  apprehension  that  the  venture  will  not  prove  permanently  satis- 
factory, because  it  deprives  the  community  of  an  independent  represen- 
tative agency  or  branch  of  government  charged  with  responsibility  for 
review  and  criticism.     Discontent  with  the  system  is  becoming  manifest  \ 

in  many  places  where  mQvements_are  on  foot  to  reintroduce  the  separate 
executive  by  providing  for  what  is  cdled  a_''„cit^ffi.aiisg£rJ'  i 

A  few  private  institutions  have  been  successfully  managed  without  j 

a  separately  organized  chief  executive,  but  in  each  such  case  the  presi-  \ 

dent  or  chairman  of  the  board  has  become,  in  fact,  the  chief  executive 
thereby  providing  for  responsible  leadership  and  personal  direction  and 
control  of  the  several  heads  of  administration. 

Administration  Under  a  Responsible  Chief  Executive 

The  second  general  group  of  governmental  agencies  which  employ  a 
representative  system  is  characterized  above  as  a  type  "  in  which  both  a 
representative  branch  and  an  executive  branch  appear,  the  chief  execu- 
tive being  looked  to  for  leadership,  and  both  branches  being  made  respon- 
sive through  provisions  for  submitting  irreconcilable  differences  directly 
to  the  people." 

Distinguishing  Characteristics  of  Type 

This  type  has  as  many  local  adaptations  as  there  are  institutions  with- 
in the  type,  but  each  has  the  following  distinguishing  characteristics.     In 
each  case  provision  is  made  for  executive  direction  and  control  over  the  , 
personnel  in  the  conduct  of  public  business..  In  each  case  the  constitution  ■  . 
provides  for  ing;fitntinnn1  lovaltv  and  co-ooeration  through  the  principle  j/! /v'^> 
of  "  solidarity  "  in  executive  responsibility  or  agreement  between  admin- 
istrative heads  before  any  plan  or  proposal  is  submitted  as  a  government 
measure.^  In  each  case  provision  is  made  for  prompt  reference  to  the 
electorate  of  irreconcilable  issues  arising  between  the  executive  and  a 


majority  of  the  official  representative  body,  thereby  making  both  branches 
responsive  to  pnbhV  npininn 

All  Responsible,  but  Differing  Degrees  of  Success  in  Development  of 
Efficiency 

The  degree  to  which  the  dift'erent  governments  of  this  type 
have  become  responsive  and  responsible  has  varied  according  to  the 
expedients  used.  In  England,  for  example,  there  can  be  no  doubt  as  to 
the  responsiveness  of  the  government  to  popular  demand,  except  in  so 

53 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

far  as  the  permanent  tenure  of  the  members  of  the  House  of  Lords  and 
the  long  tenure  of  members  of  the  House  of  Commons  have  interfered. 
But  in  case  of  continued  controversy  the  Lords  may  be  overruled  by  the 
liouse  of  Commons,  and  the  life  of  the  House  of  Commons  may  be 
brought  to  an  end  at  any  moment  by  dissolution.  In  England  there  can  be 
no  doubt  as  to  responsibility  for  leadership ;  on  the  other  hand,  there  has 
been  a  certain  indifference  to  the  need  for  adopting  expedients  that  are 
essential  to  efficiency  and  economy,  a  fact  perhaps  explicable  by  taking 
into  account  the  contentment  of  the  British  with  long  established  customs 
and  their  regard  for  the  conventions  that  have  grown  up  around  a  heredi- 
tary ruling  class  in  a  highly  stratified  society.  In  Fra^ice  the  government 
is  also  responsive.  Responsible  executive  leadership  has  also  been  estab- 
lished both  in  the  election  of  the  president  and  the  prompt  retirement  of 
the  cabinet  in  case  of  failure  to  retain  the  support  of  a  majoritv  of  reprje- 
sentatives.  There  the  ancient  social  stratification  has  in  a  measure  given 
v;ay  to  expedients  for  making  the  administration  more  efficient  and 
economical.  In  Germany  adaptations  for  responsiveness  to  public  opinion 
have  not  been  as  completely  developed  as  in  France  and  England.  Leader- 
ship there  is  also  made  responsible ;  but  in  last  analysis  this  does  not 
rest  so  directly  on  a  vote  in  the  representative  branch,  but  depends  on  the 
ability  of  the  Kaiser  and  the  Chancellor  to  sense  the  public  opinion. 
There  the  best  known  expedients  which  make  for  efificiency  and  economy 
have  been  developed  and  applied  to  a  degree  unknown  outside  of  privately 
organized  establishments,  with  the  possible  exception  of  Japan.  Without 
suggestion  of  invidious  comparison,  these  references  to  experience  are 
made  to  call  attention  to  the  fact  that  the  second  general  type  of  organiza- 
tion for  management  has  proved  adjustable  to  the  most  varying  poHtical 
conditions,  and  that  this  type  is  adapted  to  securing  efTective  popular  con- 
trol, responsible  leadership,  and  honest,  efificient  and  economical  transac- 
tion of  public  business. 

An  Independently  Organized  Administr.-vtion  Without  Leadership 
The  third  type  of  government  in  which  separate  executive  and  legis- 
lative branches  appear  without  any  provision  being  made  for  responsible 
leadership  or  for  submitting  irreconcilable  differences  to  the  electorate 
is  to  be  found  in  all  of  the  American  states,  and  is,  in  a  somewhat  modified 
form,  the  basis  of  the  federal  system.  It  may  "be  said  with  safety  that  of 
all  the  countries  of  the  world  in  which  democracy  has  made  any  consider- 
able advances,  the  United  States  is  the  only  one  that  retains  this  type. 
It  is  true  that  the  governments  of  the  South  American  repubhcs  are 
modelled  on  this  form,  but  at  times  they  have  not  been  representative, 
that  is,  have  not  always  succeeded  in  preventing  executive  usurpation. 
In  the  United  States  the  essential  advantages  of  a  strong  executive  held 
to  responsible  leadership  have  been  destroyed,  whereas  in  countries  pos- 

54 


GENERAL    DISCUSSION    OF    STRUCTURE 


sessing  the  second  type  the  executive  department  has  been  conquered, 
not  destroyed,  and  it  has  been  made  both  responsible  and  efficient. 

The  Mechanism  for  Making   Management  Responsible  Recent  in  Its 
Development 

The  predominance  of  this  third  type  of  representative  government  in 
the  United  States  may  be  ascribed  to  historical  accident  rather  than  to 
any  reasoned  consideration  and  rejection  of  the  second  type.  At  the 
time  of  the  establishment  of  American  independence,  when  statesmen 
were  forming  state  governments  and  creating  a  union,  the  principle  of 
popular  representation  was  accepted  in  the  United  States  and  in  England 
but  the  technique  for  the  enforcement  of  executive  responsibility  had  not 
been  worked  out  and  applied.  While  the  Revolutionary  War  was  a  part 
of  the  struggle  for  the  general  principle  of  popular  control,  it  occurred 
before  a  mechanism  for  making"  the  executive  responsible  had  been  devised 
and  installed.  At  this  very  time  George  III  was  resisting  and  resenting 
popular  interference  with  his  executive  prerogatives — he  was  trying  to 
defeat  the  efiforts  of  politically  organized  constituencies  to  determine  what 
the  executive  should  do.  He  did  not  openly  attack  the  representative 
system,  but  sought  to  destroy  all  sense  of  solidarity  among  the  members 
of  his  own  cabinet  as  the  responsible  heads  of  the  administration,  and 
destroy  their  leadership  as  popular  representatives.  When  George  III 
came  to  the  throne  this  policy  was  relatively  easy  to  carry  out,  because 
the  idea  of  responsible  leadership  was  only  hazily  grasped.  A  considerable 
luimber  of  the  members  of  the  cabinet  were  not  regarded  as  having  any 
responsibility.  "  In  the  Grenville  Ministry,  which  lasted  from  the  spring 
of  1763  to  the  summer  of  1765,"  says  Anson,  "  the  business  of  the  govern- 
ment was  settled  at  weekly  dinners,  at  which  only  five  or  six  ministers 
were  present  *  *  *.  The  cabinet  of  Lord  Buckingham  in  1782  would 
seem  to  be  the  first  in  which  there  were  no  non-official  members.  It 
consisted  of  11  persons,  each  holding  high  political  office."  Lord  Buck- 
ingham himself  is  reported  to  have  said  of  his  fellow  members,  when 
discussing  the  ability  of  the  cabinet :  "  I  could  chase  the  hare  with  a 
|)ack  of  hounds  but  not  with  a  lot  of  lobsters." 

The  English  Rule  Limiting  the  Cabinet  Personnel  to  Responsible  Officers 
Not  Adopted  till  1801 
It  was  not  till  1801  that  the  rule  was  established  in  England  which 
limited  members  of  the  cabinet  to  persons  holding  responsible  offices,  and 
England  at  that  time  was  the  most  advanced  of  all  nations  in  the  develop- 
ment of  methods  for  making  the  executive  responsible.  Responsibility 
then  came  to  mean  also  liability  of  executive  heads  to  lose  their  official 
positions  in  case  they  as  a  cabinet  could  not  join  in  every  administration 
proposal  submitted.     If  a  minister  differed  from  his  colleagues  he  was 

55 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

f.xpected  to  resign  or  to  be  held  responsible  for  what  the  cabinet  did  as 
a  group.  Responsibility  was  made  collective  and  leadership  was  made 
responsible  by  providing  that  the  cabinet  should  present  a  solid  front  in 
dealing  with  the  legislature. 

A  Single  Responsible  Head  Not  Recognized  in  England  till  after  the 
American  Revolution 

The  necessity  for  a  prime  minister  or  head  of  the  administration 
was  not  recognized  until  after  the  American  Revolution,  and  it  was  not 
until  after  1832  that  the  prime  minister  came  in  fact  to  be  the  choice 
of  a  body  acting  as  an  electoral  college — persons  chosen  by  the  electorate 
who  had  delegated  to  them  the  power  to  select  a  chief  executive.*  That 
is,  it  was  not  until  after  the  passage  of  the  Reform  Bill  that  the  Com- 
mons came  to  be  fairly  representative,  and  the  cabinet  was  made  wholly 
dependent  on  retaining  the  support  of  a  majority  of  the  representatives 
of  the  people. t 

The  Mechanism  for  Carrying  Issues  before  the  Electorate  A'ot  Perfected 
until  after  1832 

After  responsible  and  collective  leadership  was  firmh-  established  in 
the  cabinet,  the  final  step  in  the  development  of  the  system  was  the  adop- 
tion of  the  expedient  of  submitting  irreconcilable  differences  between 
the  executive  and  the  legislature  to  the  decision  of  the  electorate.  This 
step  was  not  firmly  taken  until  about  the  middle  of  the  nineteenth  cen- 
tury. Speaking  on  this  point,  Anson  says :  "  There  was  no  instance 
before  1830  of  a  ministry  retiring  because  it  was  beaten  on  any  question 
of  legislation  or  even  of  taxation.  So  late  as  1841  Macaulay  maintained 
in  the  House  of  Commons,  speaking  as  a  cabinet  minister,  that  the  gov- 
ernment were  not  bound  to  resign  because  they  could  not  carry  legislative 
changes,  except  in  particular  cases  where  they  were  convinced  that  with- 
out such  and  such  a  law  they  could  not  carry  on  the  public  service." 

Means  for  Making  Control  through  Representatives  Effective,  Not  Gen- 
erally Adopted  in  Europe  till  after  1848 
It  is  also  a  matter  of  peculiar  interest  that  the  Revolution  of  1848 
and  other  political  disturbances  in  Europe  which  occurred  in  the  middle 
of  the  last  century  had  very  largely  to  do  with  the  establishment  of  the 
principle  of  executive  responsibility  in  the  continental  governments  of 

*In  establishing  our  federal  constitution,  a  separate  electoral  college  was  pro- 
vided for.  In  some  countries,  the  regular  representative  body  is  used  for  this 
purpose.  Our  electoral  college  meets  once,  casts  a  vote  and  that  is  the  end  of  it ; 
the  parliamentary  electoral  college  is  a  continuing  body,  always  available  to  perform 
the  electoral  function. 

fBefore  the  passage  of  the  Reform  Bill  the  Commons  w^as  largely  under  the 
domination  of  the  executive,  through  his  ability  to  control  the  "  rotten  boroughs  " 
and  the  use  of  other  questionable  means. 

56 


GENERAL    DISCUSSION    OF    STRUCTURE 


Western  Europe.  Each  of  these  has  a  representative  body.  To  this 
body  is  given  the  power  to  determine  poHcies  and  settle  what  the  execu- 
tive may  do.  But  in  each  the  executive  must  lay  before  representatives 
what  is  proposed  by  the  administration.  Each  of  them  holds  the  executive 
to  account  for  working  out  details  and  for  doing  things  for  which  ap- 
proval has  been  given,  but  withholds  the  power  to  proceed  without  con- 
sent of  a  majority  of  representatives.  In  developing  methods  for  mak- 
ing the  executive  responsible,  each  has  resorted  to  the  expedients  that 
were  commonly  known  by  the  people  to  have  been  effective  in  manage- 
ment of  affairs,  both  public  and  private.  For  the  purpose  of  making  a 
government  responsive,  all  the  countries,  with  one  or  two  exceptions, 
insisted  on  the  establishment  of  a  political  system  that  would  provide — 

1.  For  the  election  of  representatives. 

2.  For  giving  to  these  representatives  the  means   for  knowing 

what  was  being  done. 

3.  For  enforcing  the  prompt  retirement  from  the  executive  serv- 

ice of  the  heads  of  administration  who  do  not  retain 
the  confidence  and  support  of  a  majority. 
And  in  order  to  definitize  responsibility,  each  provided  for  a  prime  min- 
ister who  was  held  to  account  for  formulating  and  submitting  the  plans 
or  proposals  of  the  administration  and  who  could  be  held  responsible  for 
the  honesty  and  qualifications  of  the  personnel  of  the  administration,  for 
the  efficiency  and  economy  of  management. 

The   Isolated   Development    of   the   American    Type    of   Representative 
Government 

The  American  system  of  government  was  not  only  established  before 
the  development  of  those  institutions  for  making  executive  leadership 
efl:'ective  and  at  the  same  time  thoroughly  responsible,  but  it  was  estab- 
lished under  circumstances  which  were  wholly  abnormal,  namely,  during 
a  revolutionary  condition  of  affairs  produced  by  a  popular  struggle 
against  irresponsible  executive  authority  exercised  through  agents  of 
the  British  crown.  The  executive  branch  of  the  government  in  all  of 
the  American  colonies,  except  Rhode  Island  and  Connecticut,  was  vested 
in  authorities  entirely  beyond  the  control  of  the  electorate,  that  is,  in 
royal  governors  in  the  provincial  colonies  and  in  proprietaries  in  the 
others.  It  was  on  the  executive  branch  essentially  that  the  colonists 
waged  their  war  for  independence.  For  them  it  was  not  then  a  question 
of  controlling  but  of  destroying  the  executive  arm. 

Accordingly  when  they  came  to  framing  state  constitutions,  they 
usually  provided  that  the  governor  should  be  a  mere  minion  of  the  legisla- 
ture (Massachusetts  and  New  York  being  the  two  marked  exceptions), 
elected  by  that  body  for  a  short  term  and  stripped  of  all  powers   for 

57 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

leadership  and  responsibility.  In  some  of  the  states  even  the  term  "  gov- 
ernor "  was  regarded  as  odious  and  insulting  to  democracy  and  the  milder 
term  of  president  was  used.  Nowhere  except  in  Massachusetts  was 
the  executive  given  the  straight  veto  power.  Everywhere  he  was  regarded 
with  suspicion  and  distrust. 

All  Real  Gains  in  American  Government  Have  Been  in  the  Direction  of 
the  Second  Type 
Although  the  ideas  of  the  Revolutionary  period  have  on  the  whole 
dominated  our  state  constitution  makers,  there  have  been  some  depar- 
tures, and  as  far  as  these  have  been  real  gains  in  responsible  and  efficient 
government,  they  have  been  in  the  direction  of  the  second  type  of  repre- 
sentative government.  The  governor  has  been  made  independent  of  the 
legislature  and  given  larger  powers  and  responsibilities.  These  have 
been  substantial  gains,  bvit  it  now  remains  for  the  convention  of  1915  to 
apply  to  the  solution  of  the  problem  presented  the  experience  of  other 
countries  and  of  the  practical  business  world. 

The  Fundamental  Question  for  Hie  Convention 

Inasmuch  as  the  whole  course  of  political  evolution  in  other  advanced 
democracies  has  been  in  the  direction  of  responsible  and  efficient  execu- 
tive leadership,  and  inasmuch  as  substantial  gains  in  American  govern- 
ment have  come  from  halting  steps  in  that  direction,  the  constitutional 
convention  is  called  upon  to  answer  this  fundamental  question :  "  Is  it 
desirable  to  retain  a  system  of  government  that  secures  only  irresponsible 
and  invisible  leadership  or  should  cognizance  be  taken  of  the  expedients 
which  have  been  developed  during  the  last  hundred  years  for  making 
leadership  effective  and  responsible."  The  discontent  with  and  organ- 
ized opposition  to  the  present  system  are  obvious.  From  the  point  of 
view  of  democracy  it  is  unsuccessful  and  from  the  point  of  view  of  busi- 
ness management  it  stands  universally  condemned. 


58 


CHAPTER  VI 

ORGANIZATION  AND  PROCEDURE  OF  THE  LEGISLATURE. 

There  are  many  variations  in  organization — as  many  as  there  are 
constitutions.  It  is  not  to  be  assumed,  therefore,  that  there  is  only  one 
best  form,  or  that  the  organization  and.  procedure  in  any  particular 
details  are  best  suited  to  the  work  to  be  done  by  a  state,  because  the 
social,  economic,  physical  and  other  environmental  conditions  which  must 
be  taken  into  account  differ  in  each  political  jurisdiction.  There  are 
three  conclusions  with  respect  to  organization,  however,  that  may  be 
accepted  with  confidence,  viz. : 

L     That  in  making  constitutional  changes  those  expedients  w'lich 
have  uniformly  worked  well  should  be  considered. 

2.  That    the    devices   and   adaptations    which    have    universally 

worked  badly  should  be  discarded  or,  if  continued,  should 
be  retained  only  for  lack  of  something  better. 

3.  That  whatever  be  the  general  design  of  the  mechanism  for 

doing  business,  every  part  should  be  in  harmony  with 
and  complementary  to  every  other  part. 

4.  That  each  part  of  the  machinery  of  government  should  be 

adapted  to  performing  the  service  for  which  it  was  in- 
tended. 

Indictments  of  the  Present  Organisation  and  Procedure  of  the  Legislature 
Attention  has  already  been  called  to  the  fact  that  one  of  the  essential 
functions  of  a  representative  body,  whether  in  government  or  in  private 
corporate  organization,  is  to  make  officers  who  conduct  the  details  of  the 
business,  responsive  and  responsible.  Without  such  an  official  body,  those 
who  do  things  and  are  responsible  for  what  is  done  must  deal  directly 
with  the  electorate  or  the  membership ;  without  such  an  official  body  the 
electorate  or  membership  is  put  to  the  disadvantage  of  not  having  a  per- 
manently organized  reviewing  and  approving  agency  to  bring  before  it 
specific  and  definite  matters  of  policy  concerning  which  there  may  be 
differences  of  opinion.  Attention  is  also  called  to  the  fact  that  the  con- 
stitutional character  given  to  the  representative  body  has  been  such  that 
it  has  operated  to  defeat  many  of  the  fundamental  purposes  of  a  repre- 
sentative system.  Against  the  present  organization  and  procedure  three 
indictments  may  be  laid : 

1.  That  they  are  of  a  kind  that  has  uniformly  worked  badly. 

2.  That  they  are  not  adapted  to  doing  the  work  for  which  they 

are  intended. 

3.  That  they  are  not  complementary  and  supplementary  to  the 

other  working  parts  of  the  government. 

59 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

The  Organkation  and  Procedure  Have  Worked  Badly 

Our  political  institutions  have  been  on  trial  before  the  people  and 
found  wanting.  It  is  for  the  members  of  the  convention  now  to  cure  the 
obvious  defects.  Defects  in  provisions  with  respect  to  the  "electorate," 
with  respect  to  the  conditions  governing  public  employment  or  surround- 
ing the  "  official  personnel,"  and  with  respect  to  the  general  structure, 
have  already  been  commented  on.  It  remains  to  discuss  more  concretely 
the  defects  in  the  organization  and  procedure  of  the  legislature,  in  the 
organization  of  the  executive,  and  in  the  several  administrative  depart- 
ments and  offices. 

The  first  indictment  (that  the  organization  of  the  representative  body 
is  of  a  kind  that  has  uniformly  worked  badly)  may  be  passed  without 
further  proof  than  is  already  before  the  people.  Past  legislative  per- 
formance has  been  of  such  a  character  as  to  cause  many  persons  to  lose 
confidence  in  representative  government  itself.  Instead  of  "  responsible 
government,"  we  had  "invisible  government";  instead  of  responsible 
"  leadership,"  we  had  a  personnel  that  is  dominated  by  "  spoils  "  and 
"  patronage  " — discipline  being  administered  from  without ;  instead  of 
efficiency,  we  had  inefficiency  and  waste  of  public  resources  to  a  degree 
that  have  caused  citizens  to  conclude  that  even  the  most  pressing  and 
obvious  public  functions  should  not  be  entrusted  to  the  government;  in- 
stead of  a  government  that  is  responsive  to  public  opinion,  our  public 
institutions  in  many  respects  have  been  irresponsive — in  fact  we  have  not 
developed  any  effective  official  means  of  formulating,  expressing  and 
enforcing  opinion  on  matters  of  large  moment. 

Experience  in  Other  Governments  Siniilarly  Organised 

Nor  is  there  any  reason  for  thinking  that  these  results  have 'been 
due  to  social,  economic  or  other  conditions  peculiar  to  the  State  of  New 
York.  The  people  of  every  state  in  which  the  same  type  of  legislative 
organization  and  procedure  has  been  used  have  had  the  same  experience. 
Results  obtained  by  every  government,  and  by  every  private  institution 
that  has  adopted  similar  methods  have  proved  just  as  disappointing.  Un- 
der circumstances  of  this  kind  it  behooves  those  charged  with  responsi- 
bility for  determining  whether  it  shall  continue  either  to  inquire  into  the 
reasons  why  the  mechanism  has  worked  uniformly  badly  or  to  discard 
it  without  inquiry. 

Not  Adapted  to  the  Work  to  he  Done 

The  principal  function  of  the  legislature  is  to  reflect  public  opinion 
on  questions  of  policy.  A  body  whose  function  is  to  express  public 
opinion  should  be  so  organized  that  the  interests  and  opinions  of  the 
state  may  be  precisely  represented  in  the  membership.  It  mayl^e  accepted 
as  a  principle  that  a  legislative  body  is  representative  only  as  it  provides 

60 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

for  two  things :  a  membership  representing  constituencies,  so  that  the 
body  itself  may  reflect  the  opinion  of  constituents  on  matters  which  have 
not  been  referred  to  the  electorate;  and  a  membership  which  may  keep 
in  contact  with  citizenship,  so  that  it  can  have  independent  judgment  on 
questions  currently  raised  for  discussion  and  a  vote. 

Present  MembcrsJiip  Represents  Territory  and  Not  Constituencies 

The  present  membership  of  the  legislature  does  not  represent  con- 
stituencies in  any  sense  which  will  enable  it  accurately  to  reflect  opinion 
on  statewide  matters  ;  it  represents  territory.  Its  selection  is  based  on 
geographic  lines. 

Territorial  Idea  Originally  Justified 

The  reason  for  geographic  representation  is  purely  historic.  When 
representative  government  originated,  it  was  the  result  of  opposition 
that  was  locally  organized.  Recognizing  this  fact  a  parliament,  whose 
membership  was  territorial,  was  employed  by  the  king  to  obtain  the 
consent  of  the  locally  organized  opposition  to  the  imposition  of  taxation. 
And  in  assigning  or  agreeing  to  representatives,  he  selected  agents  of  the 
most  important  local  subdivisions  for  these  very  obvious  reasons.  They 
were  in  control  of  the  resources  that  the  king  sought  to  reach,  and  of~ 
people  whose  ill-will  he  could  not  afford  to  incur. 

Significance  of  Geographic  Subdivisions  Lost 

At  that  time  and  for  centuries  the  territorial  subdivisions,  such  as 
counties  and  boroughs,  were  fairly  uniform  in  their  interests  and  in  their 
demands  on  the  central  government.  Within  recent  times  economic  and 
social  interests  have  taken  on  a  new  alignment.  Instead  of  self-centered 
communities,  in  whose  affairs  interests  are  common,  the  principle  of 
specialization  and  subdivision  in  individual  employment  has  operated  so 
that  constituencies  based  on  community  of  interest  are  not  territorial  but 
functional  and  state-wide  in  their  organization  and  association. 

Only  One  Territorial  Issue  Remains 

Beside  this,  the  fairly  equal  distribution  of  the  population  which 
formerly  made  the  representation  of  these  local  units  reasonably  equitable, 
has  by  a  rapid  process  of  development  in  the  mechanical  arts  given  way 
to  a  relatively  more  sparsely  settled  country  and  highly  congested  cities. 
This  situation  obtains  in  New  York  even  to  greater  extent  than  elsewhere. 
There  is  now  no  such  thing  as  even  a  rough  equ2.1ity  between  counties  and 
towns,  and  local  representation  has  come  to  mean  almost  nothing  when 
considering  matters  of  state-wide  importance. 

Evils  of  Present  System  of  Representation 

The  acceptance  of  the  purely  fortuitous  boundary  lines  of  county 
and  town  has  more  than  a  negative  importance.     It  places  representatives 

61 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

in  the  attitude  of  local  competition  and  reduces  the  legislature  as  a 
branch  of  the  government  to  the  plane  of  a  commercial  exchange  in 
which  local  representatives  bicker  for  advantage.  A  second  result  has 
been  to  pit  the  country  against  the  town  in  a  contest  of  strength,  which 
not  infrequently  defeats  measures  necessary  to  the  highest  welfare  of 
the  people  of  the  state.  A  third  result  is  that  it  causes  the  legislature 
to  retain  control  over  many  local  matters  that  could  best  be  left  to  county 
or  municipal  government. 

Even  assuming  that  territory  and  not  constituencies  are  of  primary 
importance,  the  system  has  worked  badly.  It  is  true,  the  present  consti- 
tution requires  that  each  senate  district  shall  contain  as  nearly  as  may 
be  an  equal  number  of  inhabitants,  excluding  aliens,  and  that  representa-' 
tion  in  the  assembly  shall  be  apportioned  among  the  several  counties  of 
the  state  as  nearly  as  may  be  according  to  the  number  of  their  respective 
inhabitants,  excluding  aliens.  But,  as  is  well  known,  the  principle  em- 
bodied in  these  provisions  is  grossly  violated  by  limitations  imposed  by 
the  constitution  itself  (such  as  the  provision  that  each  county  except 
Hamilton  shall  have  one  assemblyman  regardless  of  its  population)  and 
by  the  methods  of  apportionment  employed  by  both  political  parties.  The 
gerrymander,  which  is  persistently  used,  is  openly  designed  to  defeat 
responsibility  by  securing  to  the  dominant  party  which  resorts  to  it  a 
representation  larger  than  that  to  which  its  vote  entitles  it,  and  the  gerry- 
mander cannot  be  prevented  as  long  as  the  single  member  district  is  the 
basis  of  apportionment. 

Nexv  Adaptations  Made  in  Other  Political  Jurisdictions 

In  other  jurisdictions  and  political  systems  where  the  need  for  a 
new  method  of  defining  constituencies  has  been  recognized,  the  prin- 
ciple of  proportional  representation  has  been  adopted.  This  has  led  to 
the  abolition  of  the  single  member  district  and  the  establishment  of  a 
system  of  membership  responsive  to  constituencies  by  giving  to  each 
reorganized  constituency  representation  approximately  according  to  its 
voting  strength.  For  this  method  it  is  claimed  that  it  works  justice  to 
all  parties,  guarantees  an  approximately  exact  reflection  of  all  shades  of 
public  opinion  in  the  legislature  and  establishes  in  fact,  as  well  as  in 
name,  a  legislature  responsive  to  the  will  of  the  people.  Whether  by 
this  or  other  methods,  the  end  is  accomplished,  fulfillment  of  the  essen- 
tial purpose  of  a  representative  body  in  government  requires  that  the 
present  territorial  system  be  abandoned. 

The  Bicameral  Organization  Originally  Founded  on  Class  Interests 

Another  problem  involving  the  lack  of  adaptation  of  organization  to 
work  to  be  done  is  presented  in  the  two-chamber  assembly.  Tire  bicameral 
legislature  was  founded  on  the  idea  of  constituencies.     In  its  origin  the 

62 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

upper  house  of  the  legislature,  both  in  Europe  and  in  New  York, 
was  distinctly  a  class  institution,  designed  to  protect  a  well-defined  prop- 
erty interest  against  a  radical  unpropertied  numerical  majority.  The 
English  House  of  Lords  represented  the  landed  interests  of  England. 
So  the  first  senate  of  New  York,  under  the  constitution  of  1777,  repre- 
sented the  landed  proprietors,  as  none  but  freeholders  could  sit  in  that 
body  or  vote  for  members  of  that  body  Likewise,  in  some  other  states  dis- 
tinction was  first  made  between  the  upper  and  lower  houses  on  the  basis 
of  property  or  taxation,  and  it  was  everywhere  contended  by  the  defend- 
ers of  the  system  that  if  both  houses  were  elected  by  voters  possessing 
the  same  qualifications,  all  grounds  for  the  existence  of  the  second  cham- 
ber would  disappear.  Although,  in  the  early  years  of  the  republic,  legis- 
latures and  conventions  of  delegates  yielded  to  the  increasing  demands 
for  an  electorate  in  which  no  class  distinctions  would  obtain  and  swept 
them  away,  the  bicameral  system  was  nevertheless  retained. 

It  is  a  significant  fact  that  about  the  time  the  check  of  a  distinct 
electorate  for  the  senate  was  removed,  the  practice  of  protecting  the 
rights  of  minorities  against  popular  will  by  means  of  judicial  control 
developed  with  extraordinary  rapidity.  To  the  judicial  control  exer- 
cised over  legislation  by  the  state  courts,  was  added  the  control  of  the 
federal  courts,  particularly  after  the  enactment  of  the  fourteenth  amend- 
ment to  the  Constitution  of  the  United  States  which,  by  prohibiting  states 
to  deprive  any  person  of  life,  liberty  or  property  without  due  process 
of  law,  established  positive  standards  for  the  protection  of  individual 
rights  against  state  legislatures  throughout  the  whole  American  empire. 

While  these  changes  affecting  the  position  of  the  state  legislatures 
were  taking  place,  a  third  development  was  exercising  a  profound  influ- 
ence on  the  working  of  the  bicameral  principle,  namely,  the  growth  of 
strong  party  organizations  capable  of  controlling,  when  in  power,  both 
houses  of  the  legislature  and  rendering  the  idea  of  the  houses  checking 
each  other  practically  obsolete.  A  thorough  study  of  the  operations  of 
the  New  York  legislature  recently  made  by  a  capable  observer  shows 
pretty  conclusively  the  failure  of  the  check  and  balance  principle  in  actual 
practice  when  the  same  party  controls  both  houses.*  The  useless  and 
irritating  friction  which  occurs  when  the  two  houses  are  in  the  posses- 
sion of  opposing  parties  needs  no  description  here. 

Li  considering  whether  the  provision  for  a  bicameral  body  shall  be 
retained  in  the  new  constitution  these  facts  should  therefore  be  taken 
•  into  account : 

L  The  original  justification  and  chief  reason  for  two  houses,  i.  e., 
the  representation  of  the  landed  interest  in  the  senate 
have  disappeared  with  the  establishment  of  identical  suf- 
frage for  voters  for  both  houses. 

*  Colvin,  The  New  York  Legislature :  A  Study  in  tlie  Bicameral  Principle. 

6?> 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 


2.  Adequate  control  for  the  protection  of  private  rights  exists  in 

the  fourteenth  amendment  to  the  federal  Constitution. 

3.  Party  organization  destroys  the  check  and  balance  principle 

now  employed  in  defence  of  the  theory. 

4.  When  the  two  houses  are  possessed  by  opposing  parties  waste- 

fulness, friction  and  political  folly  usually  ensue. 
The  change  to  the  single  chamber  system  has  been  effected,  after 
long  experiments  with  the  other,  in  the  legislatures  of  most  of  the  lead- 
ing cities  of  the  country,  some  of  which  have  larger  budgets  than  that 
of  the  state  of  New  York.  Aside  from  the  fact  that  the  reason  for  the 
original  institution  of  two  houses  has  disappeared,  it  has  been  found  as 
a  matter  of  experience  that  it  adds  enormously  to  the  cost  of  government ; 
it  divides  responsibility ;  and  it  gives  opportunity  for  thwarting  the  public 
will  through  maneuvering  for  delays  and  deadlocks  that  could  not  obtain 
with  one  house.  It  is,  therefore,  a  matter  for  serious  consideration 
whether  these  evils  which  are  admitted  to  be  connected  with  the  system 
do  not  outweigh  the  accepted  arguments  that  may  be  advanced  in  sup- 
port of  the  bicameral  principle. 

Number  of  Members  of  the  Legislature  Not  Determined  by  Standards  of 
Responsiveness  and  Efficiency 
The  number  of  members  of  our  state  legislature  has  always  been 
determined  by  reference  to  local,  party  and  historical  considerations,  and 
not  by  standards  of  responsiveness  or  efficiency.  As  a  result,  we  find 
402  members  to  the  lower  house  in  New  Hampshire  with  a  population  of 
430,572,  and  150  members  in  New  York  with  a  population  of  9,113,614. 
In  1777,  when  New  York  had  a  population  of  about  300,000,  the  constitu- 
tion made  provision  for  24  senators ;  in  1821  the  number  was  increased  to 
32;  and  in  1894  it  was  fixed  at  50,  with  an  arrangement  for  adding  one 
more  senator  upon  certain  contingencies.  The  number  of  members  of  the 
assembly  was  fixed  at  70  in  the  first  constitution,  at  128  in  1821  and  1846, 
and  at  150  in  1894.  If  we  apply  standards  of  responsiveness  and  efficiency 
to  the  determination  of  the  number  of  members  in  a  legislative  assembly 
it  is  necessary  to  take  in  account:  (1)  the  means  of  reaching  and  keep- 
ing in  touch  with  constituents,  (2)  the  number  needed  for  doing  the  com- 
mittee and  other  work  of  a  reviewing  and  approving  body,  and  (3)  time 
limits  upon  debate  in  the  transaction  of  business. 

The  Relation  of  Members  to  Constituencies 

With  reference  to  the  first  it  is  clear  that  with  the  modern  press 
and  means  of  travel  and  communication  a  representative  to-day  can  keep 
in  closer  touch  with  100,000  constituents  than  his  predecessor  a  century 
ago  could,  with  one-tenth  the  number.  But  this  is  not  all  that  is  required. 
Citizens  should  have  some  means  for  coming  into  personal  contact  v/itli 

64 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

members  of  the  policy  determining  branch  of  the  government,  so  that 
from  this  viewpoint  a  large  membership  in  a  state  having  a  large  popula- 
tion is  preferable  to  a  small  membership. 

The  Relation  of  Members  to  Conmiittee  Work  and  Debate 

The  membership  of  the  legislative  body  should  also  bear  some  relation 
to  the  increasing  number  of  activities  of  the  government  and  provide 
opportunities  for  constituencies  to  be  represented  in  the  principal  com- 
mittees. This  suggests  increasing  rather  than  decreasing  membership. 
With  reference  to  the  problem  of  securing  ample  debate,  however,  it  may 
be  noted  that  the  United  States  Senate,  a  body  of  96  members,  has  been 
able  to  maintain  substantial  unlimited  discussion  (whereas  in  the  House  of 
l<.epresentatives  it  is  closely  restricted),  and  it  has  also  proved  to  be  a 
remarkably  efficient  body  in  the  technique  of  law-making,  at  least  as  com- 
pared with  the  lower  house. 

Assuming  that  the  present  organization  and  procedure  are  to  be 
retained,  the  mere  fact  of  numbers  is  of  great  importance.  While  mathe- 
matical tests  cannot  be  imposed,  it  is  safe  to  say  that  even  though  a 
single  chamber  were  established,  one  hundred  members  would  constitute 
a  large  enough  working  body  for  the  expeditious  transaction  of  business. 
I'ut  it  is  further  to  be  noted,  that  with  a  system  which  provides  for 
responsible  leadership,  and  in  which  the  legislature  is  used  to  enforce 
responsiveness  and  responsibility,  a  much  larger  membership  has  not 
proved  incompatible  with  efficiency,  in  fact,  it  has  often  proved  to  be  of 
advantage  in  representing  constituencies  and  in  committee  work,  at  the 
same  time  maintaining  a  high  order  of  debate. 

Legislature  Not  Complementary  to  Other  Working  Parts 

As  has  been  said,,  there  is  nothing  which  will  justify  a  misfit,  and  one 
branch  of  the  government  is  a  misfit  if  it  is  inconsistent  with  the  purpose 
of  its  own  existence  and  is  not  harmonious  in  its  action  with  other  parts. 
By  this  test  both  the  organization  and  procedure  of  the  legislature  are 
defective.     They  are  defective  : 

1.  In  the  rules  governing  its  action  while  in  session. 

2.  In  the  organization  of  its  standing  and  special  committees. 

3.  In  its  staff  agencies. 

Rules  Governing  Legislature  in  Session  Out  of  Harmony  With  Purpose 

The  organization  of  the  legislature  in  session  is  a  simple  matter 
which  conforms  to  that  of  other  large  representative  bodies,  consisting  of 
a  presiding  officer,  clerk,  sergeant-at-arms,  pages,  etc.  The  difference 
lies  in  the  procedure  governing  the  debate  and  the  taking  of  votes.  Already 
these  defects  have  been  described.  What  has  been  said  may  be  sum- 
marized in  a  paragraph. 

65 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 


Rules  Governing  Not  Adapted  to  Enforcing  Responsibility 

In  the  development  of  rules  controlling  the  representative  body  one  or 
the  other  of  two  principles  has  dominated:  Either  they  have  been  framed 
for  the  purpose  of  locating  and  enforcing  responsiveness  and  responsi- 
bility upon  high  executive  officers — the  persons  who  must  transact  the 
details  of  business ;  or  they  have  been  framed  for  the  purpose  of  gaining 
direct  control  over  executive  subordinates,  thereby  vesting  responsibility 
in  that  body  both  for  legislative  or  administrative  acts.  With  all  the  varia- 
tions in  details  of  organization  and  procedure,  the  one  conspicuous  result 
of  adopting  the  first  principle  has  been  to  emphasize  inquiry  and  debate 
on  the  floor,  while  the  one  conspicuous  result  of  adopting  the  second 
l)rinciple  has  been  to  emphasize  the  committee,  and  to  prevent  real  debate. 
Under  the  first  plan  those  who  must  execute  are  made  responsible  for  the 
drafting  of  administrative  bills  and  preparing  briefs  in  support  of  execu- 
tive measures,  making  these  executive  proposals  the  subject  of  open- 
house  inquiry  and  debate,  the  floor  being  made  the  opportunity  for  the 
"  opposition."  Pursuant  to  the  second  plan,  the  executive  is  not  per- 
mitted to  formulate,  introduce  or  defend  administrative  or  any  other 
measures,  and  the  whole  procedure  becomes  one  that  cannot  be  followed 
or  understood  by  either  the  membership  or  constituencies. 

The  first  plan  is  adapted  to  making  government  responsible — the  pur- 
pose of  the  representative  system. 

The  second  plan  is  adapted  only  to  irresponsible  government,  as  it 
does  not  provide  for  leadership,  limits  advocacy  and  defense  largely  to 
chairmen  of  legislative  committees,  whose  ways  are  secret,  deprives 
the  "  opposition "  of  all  opportunity  to  question  the  administration 
on  the  floor,  applies  "  gag  "  rule  to  debate  to  force  measures  of  an  irre- 
sponsible "  organization  "  through  each  house,  and  in  case  of  difiference, 
through  joint  conference  committees,  whose  reports  are  accepted  under 
the  whip,  and  sends  to  the  executive  measures  without  giving  him  any 
public  opportunity  to  participate,  except  by  acceptance  or  rejection.  This 
is  the  type  of  regulation  of  legislative  procedure  employed  in  the  state 
of  New  York.  Nor  is  the  present  unsatisfactory  character  of  the  rules 
and  of  results  due  to  any  lack  of  constitutional  verbiage  in  the  organic 
law  itself.  Its  evils  have  only  grown  larger  in  the  efforts  of  the  people 
to  prevent  "  log  rolling,"  "  pork  barrel  "  legislation,  and  "  dark  chamber  " 
proceedings  by  mere  restrictions  on  procedure.  The  defect  is  one  of 
fundamental  design  that  cannot  be  cured  by  patchwork  or  safety  devices 
to  prevent  disaster. 

Legislature  in  Conflict  zvith  Authority  and  Jurisdiction  of  the  Executive 
The  results  of  the  ill  adaptation  of  the  legislative  machinery  for  lo- 
cating and  enforcing  responsibility  that  have  already  been  commented 
on  constitute  only  one  side  of  the  picture.     A  most  serious  consequence 

66 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

of  the  irresponsible  use  of  legislative  power,  under  conditions  where 
inadequate  provision  is  made  in  the  organization  of  the  legislature  for 
direct  dealing  with  the  executive,  has  been  the  invasion  of  the  field  of  ad- 
ministration, through  the  activities  of  legislative  committees  which  are 
given  in  fact  (whatever  the  theory)  the  power  to  recommend  and  refuse 
to  report  requests  for,  appropriations,  to  create,  modify  and  destroy  the 
administrative  machinery,  to  determine  who  shall  be  employed,  what 
salaries  may  be  paid,  what  supplies  and  equipment  may  be  obtained,  what 
are  the  conditions  surrounding  the  service — without  any  opportunity  being 
given  to  the  executive  to  state  publicly  and  defend  openly  in  the  legislature 
his  reasons  for  dissent  based  on  real  administrative  experience.  When 
these  powers  are  exercised  on  the  one  hand  on  recommendations  of  com- 
mittees and  little  or  no  power  is  given  to  the  governor  to  appoint,  remove, 
direct,  discipline  or  control  administrative  officers  and  agents,  the  uniform 
result  has  been  that  all  of  the  functions  and  processes  of  administration 
sooner  or  later  come  under  the  domination  of  committees,  whose  member- 
ship in  turn  has  no  responsibility  for  results  and  no  accounting  to  render 
to  the  people  of  the  state  at  large,  but  on  the  contrary  is  interested  first 
of  all  in  local  favors  or  in  appropriations,  contracts  or  apportionment 
laws  which  afifect  the  partisan  organizations. 

Standing  Committees  Not  Adapted  to  the  Proper  Consideration  of  Mea- 
sures Either  of  Legislation  or  Administration 
In  the  standing  and  special  committees  there  is  the  same  lack  of  co- 
ordination with  the  work  of  the  government  that  is  found  in  the  adminis- 
trative departments  and  offices.  In  connection  with  this  subject  the  fol- 
lowing points  should  be  noticed :  ( 1 )  The  committees  of  the  senate  and 
assembly  do  not  correspond  in  several  respects,  although  the  legislative 
functions  of  the  two  houses  are  identical.  In  1915,  the  former  body 
had  twenty-five  standing  committees  and  the  latter  had  thirty-one.  Not 
only  is  there  a  lack  of  correspondence  in  the  committees,  but  there  is  a 
want  of  co-operation  between  the  committees  of  the  two  houses — a  need 
which  in  some  states  has  led  to  the  creation  of  joint  standing  committees, 
as  in  Massachusetts.  (2)  In  several  instances  there  is  a  lack  of  centrali- 
zation of  work.  "For  example,  the  senate  has  one  committee  on  finance 
and  another  on  taxation  and  retrenchment  in  spite  of  the  obvious  inti- 
mate relation  of  the  two  functions.  The  assembly  distributes  financial 
matters  among  three  committees :  ways  and  means,  excise,  and  taxation 
and  retrenchment.  In  the  lower  house  transportation  is  divided  among 
committees  on  canals,  railroads,  and  commerce  and  navigation.  (3)  The 
committees  of  the  two  bodies  do  not  correspond  precisely  with  the  chief 
branches  of  administration  which  are  charged  with  the  execution  of  the 
respective  laws  and  whose  finances  should  be  adequately  scrutinized  by 
the  committees. 

67 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

The  first  two  maladjustments,  namely,  absence  of  correlation  be- 
tween the  respective  committees  of  the  two  houses  and  lack  of  cen- 
tralization of  related  work  in  the  hands  of  single  committees,  are  due 
largely  to  historical  and  political  causes.  Committees  have  grown  up 
irregularly  with  the  needs  of  the  state.  When  a  new  and  important  func- 
tion is  undertaken,  there  is  great  pressure  to  establish  a  new  committee 
rather  than  to  relate  the  work  to  that  of  an  appropriate  committee  already 
in  existence.  Each  new  committee  affords  new  opportunities  to  make 
assignments  to  importunate  members  who  are  often  more  anxious  for  self- 
advertisement  than  for  work.  Each  new  committee  also  brings  in  its  train 
clerkships  and  other  perquisites  which  are  regularly  employed  to  reward 
party  service.  Thus  no  permanent  staff  of  informed  experts  is  ever 
found  attached  to  ordinary  committee  service.  The  results  of  frequently 
entrusting  important  functions  to  a  body  of  inexperienced  legislators  as- 
signed to  a  committee  and  aided  by  a  staff'  of  servants  recruited  from 
local  party  workers  are  so  patent  as  to  need  no  commentary  here. 

The  second  maladjustment,  the  lack  of  co-ordination  of  the  legislative 
committees  to  the  great  branches  of  state  administration  is  to  be  attributed 
to  two  causes.  In  the  first  place  the  administrative  organization  of  the 
state  has  been  so  broken  into  minor  and  disjointed  subdivisions  that  an 
adjustment  of  committees  to  them  has  been  impossible.  In  the  second 
place,  the  idea  that  the  legislature  should  be  a  genuine  scrutinizing  agency 
over  the  several  branches  of  administration  instead  of  a  seeker  after 
patronage  in  them  is  so  recent  as  to  have  received  little  or  no  attention 
from  those  concerned  with  legislative  organization  and  procedure. 

Legislative  Staff  Agencies 

Although  legislation  is  an  exceedingly  complicated  and  technical 
function,  being  related  on  the  one  hand  to  complex  human  relations  and 
to  previous  acts  and  judicial  decisions  on  the  other,  it  is  only  recently  that 
state  legislatures  have  begun  to  build  up  a  permanent  expert  service.  At 
the  present  time  the  legislature  of  New  York  has  at  its  command  the 
following  staff  agencies : 

1.  A  legislative  bill  drafting  commission  composed  of  two  com- 

missioners and  charged  with  the  duty  of  aiding  in  draft- 
ing legislation,  giving  advice  as  to  constitutionality  and 
other  legal  questions,  making  researches  as  to  proposed 
legislation,  and  advising  on  matters  of  consolidation  of 
the  laws. 

2.  A  commissioner  charged  with  the  duty  of  indexing  the  laws 

and  statutes  of  the  state. 

3.  A  temporary  board   of   statutory  consolidation   comj^osed   of 

five  members  charged  with  the  duty  of  reporting  to  the 

68 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

legislature  a  practice  act,  rules  of  court,  and  short  forms — 
the  consolidation  and  simplification  of  the  civil  practice 
of  the  courts  of  the  state. 

4.  A  board  of  estimate  composed  of  the  governor,  lieutenant- 

governor,  president  pro  tempore  of  the  senate,  the  chair- 
man of  the  finance  committee  of  the  senate,  the  speaker 
of  the  assembly,  the  comptroller,  the  attorney  general  and 
the  commissioner  of  efficiency  and  economy  (now  abol- 
ished) and  authorized  to  prepare  and  transmit  to  the 
legislature  an  estimate  for  a  budget  for  the  amount  re- 
quired to  be  appropriated  by  the  legislature  for  the  con- 
duct of  public  business  for  the  ensuing  fiscal  year. 

5.  A  commission  for  the  promotion  of  uniform  legislation  in  the 

United  States  to  consider  and  recommend  uniform  laws 
on  certain  specified  subjects. 

6.  A  number  of  special  commissions  from  time  to  time  to  report 

on  matters  for  legislative  action. 

It  is  evident  from  a  survey  of  these  agencies  that  some  of  them 
could  be  consolidated  in  the  interest  of  efficiency  and  economy  and  at  least 
one  of  them,  the  board  of  estimate,  is  not  adapted  to  the  purpose  for 
which  it  was  created.*  There  is  certainly  no  reason  why  the  promotion 
of  uniform  legislation  and  the  indexing  of  the  statutes  should  be  sepa- 
rated  from  the  general  work  of  the  bill  drafting  commission.  In  giving 
proper  technical  advice,  that  commission  must  be  entirely  familiar  with 
existing  law  and  in  a  position  to  index  it  with  more  precision  than  an 
independent  ofificer.  The  promotion  of  uniform  legislation  is  not  so  re- 
mote from  bill  drafting  and  legislative  research  that  it  requires  separate 
organization  and  office  equipment.  The  constant  resort  to  special  com- 
missions on  legislative  subjects  suggests  that  the  staff  agencies  for  supply- 
ing information  to  the  legislature  must  be  inadequately  equipped  for  the 
performance  of  the  duties  vested  in  them  by  law. 

Local  Legislation 

The  working  power  of  the  best  organization  in  the  world  can  be 
utterly  destroyed  by  overloading  it  with  details  and  by  constantly  injecting 
extraneous  issues  concerning  which  the  members  cannot  possibly  be  in- 
formed. What  may  be  said,  therefore,  of  our  state  legislatures 
which  are  now  overburdened  with  a  mass  of  legislation  relative  to  the 
affairs  of  counties,  towns,  villages,  and  cities,  about  which  the  members 
in  general  are  almost  wholly  ignorant  and  the  members  from  the  localities 
involved  only  partially  informed?    It  is  a  well-known  fact  that  each  legis- 


*For  a  discussion  of  the  board   of  estimate   see  the   Proceedings  of  the   Ne\ 
York  Academy  of  Political  Science  for  October,  1914,  pp.  141-192. 

69 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

lator  is  constantly  harassed  by  the  demands  of  his  constituents  for  local 
legislation,  that  the  pressure  to  obtain  this  legislation  compels  him  to 
sacrifice  larger  affairs  of  the  state  to  local  necessity,  that  the  time  of  the 
legislature  is  withdrawn  from  the  consideration  of  great  questions  to  the 
transaction  of  petty  business  and  that  the  finances  of  the  state  and  of 
localities  are  disorganized  and  wasted  by  special  legislation. 

The  present  constitution  recognizes  the  evils  connected  with  this 
system  and  touches  upon  it  slightly  (Art.  Ill,  sees.  16,  20,  26,  27;  Art. 
VIII,  sec.  10;  Art.  XII,  sec.  2),  but  it  does  not  go  to  the  root  of  the 
difficulty,  namely,  by  conferring  home  rule  upon  counties  and  cities  in 
such  a  form  to  relieve  the  local  communities  of  the  necessity  of  con- 
stant application  to  the  legislature  for  powers. 

Of  course,  it  is  obvious  that  by  conferring  general  powers  of  local 
legislation  upon  cities  and  counties,  the  problem  of  the  state  and  the 
community  is  not  solved.  Questions  as  to  what  powers  are  actually  con- 
ferred upon  the  communities  will  constantly  arise,  and  the  will  of  the 
state  must  be  superior  to  that  of  the  local  body.  The  limitations  on  the 
legislature  are  in  this  regard  subject  to  judicial  interpretation  and  by 
granting  home  rule  to  localities  the  control  of  the  courts  may  be  substi- 
tuted for  control  by  the  legislatures. 

There  is,  however,  another  method  of  exercising  the  control  of  the 
state  over  local  legislation.  Local  legislation  under  general  grants  of 
power  may  be  subject  to  administrative  supervision  in  the  first  instance, 
with  appeal  to  the  courts  as  the  last  resort.  In  Michigan,  where  general 
powers  are  conferred  upon  counties,  important  local  legislation  under  this 
grant  is  subject  to  the  approval  of  the  governor.  In  California,  it  is  sub- 
mitted to  the  legislature  for  approval  or  rejection.  In  England,  the  most 
satisfactory  solution  of  the  problem  seems  to  have  been  made.* 

If  the  vast  mass  of  local  and  special  bills  which  now  clog  the  legis- 
lative machine,  divert  attention  from  matters  of  large  significance,  and 
degrade  members  to  the  level  of  negotiators  for  pettv  local  favors,  could 
be  disposed  of  in  such  a  manner  as  to  secure  state-wide  control,  and  at  the 


*In  England  the  power  to  authorize  local  bodies  to  perform  manv  functions 
and  undertake  various  enterprises  is  vested  by  law  in  several  appropriate  central 
administrative  officers,  subject  to  the  approval  of  Parliament.  When  a  local  body 
seeks  a  new  power  or  authorization  it  applies  to  the  appropriate  department.  On 
receiving  an  application  the  department  makes  inquiry  into  the  advisability  of  grant- 
ing the  request,  holds  hearings,  and  gives  all  interested  parties  a  chance  to  be  heard. 
All  orders  granted  are  arranged  in  proper  groups  and  submitted  to  Parliament  for 
its  approval.  If  there  is  no  nbiection  to  any  of  the  orders  the  entire  eroup  eoes 
through  unopposed.  If  there  is  obiection.  then  a  hearing  is  granted  and  the 
measure  is  treated  like  any  other  ordinarv  bill.  In  practice,  however,  this  relieves 
narh'ament  of  a  large  mass  of  petty  legislation  and  centralizes  the  initial  responsi- 
1  il-'tv  in  the  hands  of  expert  administrative  officers.  See  in  Lowell.  The  Govern- 
ment of  England,  Vol.  I.,  Chap.  xx. 

70 


ORGANIZATION    AND    PROCEDURE    OF    THE    LEGISLATURE 

same  time  relieve  the  legislature,  the  gain  for  efficiency  and  real  responsi- 
bility would  undoubtedly  be  enormous.  Any  reduction  in  the  amount  of 
"  log-rolling  "  is  a  step  in  the  direction  of  better  government,  and  the  sub- 
stitution of  administrative  for  legislative  control  over  matters  of  local 
concern  is  full  of  promise. 


71 


CHAPTER  VII. 

CONSTITUTIONAL  PROVISIONS  DEFINING  THE  RELA- 
TIONS OF  LEGISLATURE  AND  EXECUTIVE 

In  other  relations  it  has  been  said  that  one  of  the  prime  reasons 
for  the  representative  system  is  to  make  officers  charged  with  carrying 
on  or  administering  afifairs  of  state  responsible  to  the  people  for  their 
acts ;  and  that  this,  when  analyzed,  means :  responsibility  for  leadership, 
responsibility  for  the  fidelity  and  fitness  of  subordinates,  and  responsibility 
for  efficiency  in  management — for  the  use  of  men  and  money  as  measured 
by  results.  It  has  also  been  said  that  the  function  of  the  legislature  is  to 
serve  as  a  regularly  organized  constitutional  means  for  enforcing  execu- 
tive responsibility.  This  suggests  consideration  of  the  provisions  in  the 
constitution  of  the  state  defining  the  regulations  of  the  legislature  and  the 
executive. 

Responsibility  for  Use  of  Executive  Pozver  Implies  Leadership 

Responsibility  for  the  use  of  executive  power  inevitably  implies 
leadership.  Executive  power  and  leadership  cannot  be  separated.  In 
both  public  and  private  business,  those  who  are  charged  with  high  duties, 
and  who  are  made  responsible  for  their  proper  discharge  must  be  leaders 
or  failures.  On  the  contrary,  irresponsible  official  leadership  means 
autocracy.  Irresponsible,  unofficial  leadership  means  domination  by 
political  "  boss." 

N'eed  for  Executive  Leadership  Understood  at  Time  of  First  Constitution 
At  the  time  the  first  constitution  was  adopted  there  was  a  very 
definite  comprehension  of  the  need  for  executive  leadership,  though,  as 
before  pointed  out,  the  plan  for  making  the  official  leader  responsible  had 
not  been  developed  as  a  matter  of  public  law  (above  pp.  54-58).  It  was 
also  understood  that  autocracy  must  be  prevented  at  any  cost.  The  well- 
established  constitutional  principle  was  therefore  adopted  that  the  adminis- 
trative officer  must  wait  on  legislative  authority  before  he  could  raise 
or  spend  money,  before  he  could  proceed  with  any  undertaking.  As  has 
been  shown,  this  principle  is  not  inconsistent  with  executive  leadership. 
But  does  not  in  itself  provide  for  executive  leadership.  So  far  as  the 
executive  is  concerned  it  is  purely  negative  in  its  importance.  It  is  posi- 
tive only  in  the  opportunity  it  gives  for  the  enlargement  of  legislative 
power  when  executive  leadership  is  not  provided  for. 

The  conclusion  that  the  need  for  executive  leadership  was  understood 
when  the  government  was  first  established,  appears  from  the  provision 
of  the  organic  law  of  the  state,  which  declares  that  "  the  executive  power 
shall  be  vested  in  a  governor,"  but,  paradoxical  as  it  may  sound,  the  first 

72 


RELATIONS    OF    LEGISLATURE    TO    EXECUTIVE 


constitution  as  well  as  every  subsequent  constitution  failed  to  vest  in  the 
governor  the  executive  power  which  it  has  declared  to  be  his.  As  Governor 
Hughes  remarked  in  his  inaugural  address  of  1909,  "  There  is  a  domain 
of  executive  or  administrative  action  over  which  he  has  no  control,  or 
slight  control."  In  other  words,  the  means  of  exercising  the  executive 
power  are  not  given  to  the  governor.  To  continue  the  analysis  made  by 
Governor  Hughes :  "  There  are  several  elected  state  ofificers  not  account- 
able to  the  governor,  who  exercise  within  their  prescribed  spheres  most 
important  executive  powers  *  *  *.  The  multipHcation  of  executive 
duties  incident  to  the  vast  and  necessary  increase  in  state  activities  has 
resulted  in  the  creation  of  a  large  number  of  departments  exercising 
administrative  powers  of  first  consequence  to  the  people.  The  governor 
has  the  power  of  appointment,  but  in  most  cases  the  concurrence  of  the 
senate  is  necessary.  The  terms  of  officers  are  generally  longer  than  the 
governor's  term.  And  in  their  creation  the  legislature,  with  few  excep- 
tions, has  reserved  the  final  administrative  control  to  the  senate  in  making 
the  heads  of  departments,  to  whose  appointment  the  senate's  consent  is 
necessary,  removable  only  by  it."  Thus  the  fundamental  fact  stands  forth 
that  the  means  of  exercising  the  executive  power  are  largely  withheld 
from  the  governor  in  whom  the  power  is  constitutionally  vested. 

Two  Important  Ways  in  Which  Governor  is  Recognized  as  Leader 

Nevertheless,  in  two  important  ways  the  governor  is  recognized  as  a 
responsible  leader: 

His  Duty  to  Recommend  Measures 

All  of  the  constitutions  of  this  state  have  made  it  the  duty  of  the 
governor  to  inform  the  legislature  of  the  condition  of  the  state  and  to 
recommend  such  matters  as  he  shall  deem  worthy  of  consideration  by  that 
body.  In  the  first  organic  law,  he  w^as  instructed  to  recommend  such 
matters  "  as  appear  to  him  to  concern  its  [the  state's]  good  government, 
v/elfare  and  prosperity."  Under  the  present  constitution  he  is  to  recom- 
mend whatever  he  shall  "  judge  expedient."  Obviously  the  duty  of 
studying  public  policies  and  administrative  methods  is  thus  clearly  laid 
upon  the  governor,  with  a  view  to  his  formulating  positive  recommenda- 
tions to  the  legislature.  By  this  very  act  the  governor  assumes  before  the 
public  a  marked  responsibility,  which  is  not  discharged  by  a  mere  per- 
functory address  to  the  representative  body. 

His  Pozvcr  to  Call  Representatives  Together  in  Extra  Session 

Further  evidence  of  recognition  of  the  need  for  executive  leadership 
is  found  in  provisions  that  give  to  the  governor  the  power  to  call  an 
extraordinary  session  of  the  legislature  and  to  limit  the  work  of  such  a 

7Z 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

session  to  only  those  subjects  which  he  may  recommend  for  consideration. 
The  exercise  of  this  power  by  executives  of  great  distinction  and  the 
general  approval  that  has  followed  such  exercise,  in  most  cases,  are  evi- 
dence of  popular  appreciation  and  understanding  of  its  significance. 

Lacking  in  Means  for  Making  Leadership  Effective 

What  is  lacking  is  the  means  for  making  leadership  effective.  When 
the  principle  which  is  recognized  in  private  affairs  as  essential  to  leader- 
ship (viz.,  responsibility  and  effective  collective  action)  is  applied  to  the 
business  of  government  it  is  evident  that  the  one  power  essential  to 
effective  leadership  is  withheld  or  not  made  mandatory.  It  is  not  made 
the  duty  of  the  executive  to  appear  personally  before  the  legislature 
with  projects  or  measures  that  are  regarded  by  him  to  be  needful.  He 
is  not  required  to  formulate  measures  nor  to  have  them  formulated  and 
presented  by  a  responsible  body  of  executive  advisers  or  cabinet.  Neither 
the  governor  nor  anyone  responsible  to  him  is  required  to  appear  on  the 
floor  of  the  legislature  to  submit  and  defend  his  proposals  against  all 
"  opposition  "  or  to  modify  them,  so  that,  if  he  is  not  supported,  he  may 
be  in  a  strong  position  in  going  before  the  people  on  the  issue  raised. 
This  has  long  been  the  common  practice  in  all  business  corporations,  but 
it  has  not  been  fully  developed  as  a  means  of  making  government 
responsible. 

Right  to  Introduce  and  Defend  Measures  Necessary  to  Effective  Leader- 
ship 

Since  the  establishment  of  the  first  state  constitution,  however,  the 
above  principle  has  been  firmly  fixed  abroad.  Recognizing  such  a  require- 
ment of  the  executive  as  essential  to  leadership,  as  well  as  essential 
to  the  location  and  enforcement  of  responsibility,  the  King's  "  speech  from 
the  throne  "  in  England  is  written  by  the  cabinet  and  embodies  the  recom- 
mendations of  the  executive  branch  of  the  government.  The  French 
constitution  provides  that  the  executive  may  call  extraordinary  sessions 
and  communicate  by  message,  as  in  this  country,  and  also  gives  to  the 
executive  power  to  introduce  bills  concurrently  with  the  members  of  the 
legislature ;  and  finally  adds  that  *'  the  ministers  have  entrance  to  both 
chambers  and  must  be  heard"  (Article  6  of  the  Act  of  July  16,  1875). 
The  admission  of  the  executive  to  the  floor  of  the  legislature  has  also 
found  widespread  approval  in  the  United  States.  The  principle  has 
received  the  endorsement  of  more  than  one  president  and  it  was  approved 
by  a  committee  of  the  federal  senate  a  quarter  of  a  century  ago.  It  has 
been  demonstrated  to  be  sound  and  effective  in  foreign  government  as 
well  as  in  private  business  enterprises. 

74 


RELATIONS    OF    LEGISLATURE    TO    EXECUTIVE 


Argument  Opposed  to  the  Principle  Not  Well  Founded 

The  only  argument  in  opposition  to  the  principle,  which  carries 
weight  with  American  opinion,  is  based  on  the  assumption  that  admis- 
sion of  the  executive  to  the  floor  would  break  down  the  accepted  theory 
of  separation  of  powers.  This  assumption  has  no  foundation.  On  the 
contrary,  it  has  been  shown  by  all  the  experience  of  representative  gov- 
ernment that  in  those  institutions  in  which  the  executive  is  required  to 
meet  with  the  representative  body  and  submit  his  proposals  and  defend 
them,  the  principle  of  separation  of  powers  has  been  preserved,  whereas 
in  those  institutions  in  which  no  provision  has  been  made  for  this,  there 
lias  been  a  constant  invasion  of  the  administrative  field  by  the  legislative 
branch  or  the  legislative  field  by  the  executive,  or  both. 

Executive  Leadership  Essential  to  Preservation  of  Separation  of  Powers 
The  power  to  propose,  explain,  and  defend,  does  not  convey  any 
power  to  enact;  the  power  to  question  and  criticize  an  executive  officer 
is  not  an  executive  power,  but  a  legitimate  legislative  function.  The 
practice  of  admitting  the  executive  officers  to  the  legislature,  only  empha- 
sizes the  separation  of  powers  and  makes  it  really  effective.  It  makes 
unnecessary  those  subterranean  relations  between  the  two  branches 
which  inevitably  spring  up  when  official  lines  of  communication  are  for- 
bidden. Under  such  a  system  the  executive  can  really  and  effectively 
criticize  the  legislature  and  the  legislature  can  force  the  executive  to 
give  an  account  of  his  conduct  in  office  every  day  in  the  year.  Without 
such  administrative  measures  the  constitutional  inhibitions  to  prevent 
autocracy  (the  provisions  requiring  the  executive  to  get  authority  from 
the  legislature  before  he  can  proceed)  gives  to  the  legislature  the  power 
gradually  to  supplant  the  executive  in  the  field  of  administration  as  it 
has  done  in  this  country. 

Executive  Leadership  Essential  to  Safe  Use  of  Veto  Potver 

Certainly  it  must  be  admitted  that  such  a  system  is  not  so  much  a 
violation  of  the  separation  of  powers  as  is  the  authority  to  veto  acts  of 
the  legislature;  yet  this  is  employed  without  any  means  of  gaining  for 
the  people  the  benefits  of  requiring  both  the  executive  and  the  legislative 
to  work  in  the  open.  Under  present  conditions  the  veto  makes  the  gov- 
ernor responsible  for  legislation  as  well  as  for  administration ;  and  the 
denial  of  the  right  to  the  governor  to  formulate  measures  of  administra- 
tive importance,  to  introduce  and  defend  them,  makes  the  legislature 
responsible  for  administration  as  well  as  for  legislation.  The  result  is 
the  utmost  confusion,  instead  of  separation,  of  powers  and  responsi- 
bilities, as  has  been  claimed. 

75 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

An  Alternative  to  Invisible  Government 

V>y  adding  to  the  power  to  propose  measures  and  veto  enactments, 
the  right  of  introducing  bills  and  defending  them  before  the  legislature, 
responsibility  for  both  administration  and  legislation  is  definitized  and 
made  enforceable  through  appeals  to  public  opinion.  In  the  absence  of 
such  a  procedure,  unwise  administrative  measures  are  proposed  by  per- 
sons not  responsible  to  the  state  at  large  for  results  and  enacted  into  law 
without  receiving  the  scrutiny  of  any  officers  charged  with  their  enforce- 
ment. The  only  consideration  that  can  now  be  given  to  such  measures 
is  in  committee.  Those  which  are  enacted  into  law  are  usually  enacted 
as  the  result  of  arrangements  among  members  who  are  not  openly 
responsible  to  the  legislature,  to  say  nothing  of  the  state  at  large,  and 
who  work  often  in  conjunction  with  those  wholly  unofficial  persons  that 
make  it  a  business  to  organize  the  votes  of  localities  favored  by  the  legis- 
lation in  hand  to  build  up  a  system  of  patronage  through  the  appropria- 
tions, contracts,  and  independent  administrative  functionaries  of  the 
state. 

No  Provision  for  Leadership  in  Matters  of  Economy 

No  provision  is  made  for  executive  leadership  in  obtaining  authority 
to  raise  and  spend  money.  The  power  of  the  governor  is  negative  only. 
The  present  constitution  of  New  York  vests  in  the  governor  power  to 
veto  single  items  of  appropriation  as  well  as  whole  bills.  Article  IV, 
section  9,  provides  that  "  if  any  bill  presented  to  the  governor  contain 
several  items  of  appropriation  of  money,  he  may  object  to  one  or  more 
of  such  items  while  approving  of  the  other  portion  of  the  bill."  If  the 
legislature  is  in  session  it  may  enact  such  items  into  law  only  by  a  two- 
thirds  vote.  In  actual  practice,  however,  it  generally  happens  that  the 
legislature  adjourns  leaving  a  large  number  of  unsigned  appropriation 
measures  in  the  hands  of  the  governor. 

Executive  Veto  to  Items  in  Money  Measures  Only  a  Palliative 

Under  such  circumstances  the  governor  is  held  responsible  for  the 
acceptance  or  reduction  of  items  as  passed  in  measures  for  which  he  is 
not  responsible.  The  power  operates  as  a  check  on  an  irresponsible 
legislature.  It  does  not  cure  irresponsibility;  it  does  not  supply  leader- 
ship ;  it  does  put  into  the  hands  of  the  governor  the  power  to  punish 
political  enemies  by  using  the  pruning  knife  wdiere  he  will,  in  the  plea 
of  economy.  The  power  is  not  constructive,  but  may  be  made  highly 
destructive.  It  transfers  from  the  legislative  committee  room  to  the 
executive  chamber  all  the  pressure  that  has  been  brought  to  bear  in  fur- 
therance of  the  plans  of  an  irresponsible  "  boss."  It  simply  invites  an- 
other dark  room  proceeding,  instead  of  having  the  business-  of  the  state 
done  in  the  open,  in  the  face  of  the  "  opposition." 

76 


RELATIONS    OF   LEGISLATURE    TO    EXECUTIVE 


Uncertainty  of  Operation  of  Negative  Pozver 

If  the  legislature  is  in  session  at  the  time  the  governor  vetoes  an 
appropriation  measure,  he  is  required  to  transmit  a  copy  of  his  reasons 
for  refusing  to  sign  the  same  to  the  house  in  which  it  originated,  and 
the  said  house  is  instructed  to  reconsider  separately  the  items  objected  to. 
Under  these  circumstances  the  governor  may,  if  he  chooses,  get  a  fair 
statement  of  a  consistent  fiscal  policy  before  the  legislature  for  discussion 
and  action.  But  usually  the  legislature  has  adjourned  before  the  gover- 
nor has  an  opportunity  to  act  on  many  appropriations.  He  may  also  spread 
before  the  legislature  in  his  messages  a  survey  of  the  state's  finances  and 
recommendations  for  expenditures  and  retrenchments,  but  such  a  survey 
and  such  recommendations  are  merely  pious  wishes,  so  far  as  compelling 
even  the  attention  of  the  legislature  is  concerned. 

Positive  Requirements  under  Present  System  Ineffective 

A  number  of  states  impose  upon  the  governor  the  constitutional 
obligation  to  present  to  the  legislature  estimates  of  the  amount  of  money 
to  be  raised  by  taxation,  but  such  a  provision  alone  does  not  go  very  far 
in  establishing  executive  responsibility  for  appropriation  bills.  The 
Efficiency  and  Economy  Committee  of  Illinois,  where  such  a  constitu- 
tional provision  exists,  remarks  in  its  recent  report  that  as  far  as  it  is 
aware  no  governor  has  complied  with  this  important  mandate.  It  adds, 
in  justice  to  the  governors,  that  failure  in  this  respect  may  be  attributed 
in  the  main  to  the  fact  that  the  executive  authorities  of  the  state  as  now 
organized  have  not  afforded  the  governor  the  facilities  for  securing  the 
requisite  information.  In  no  state  does  the  governor  seem  to  have  used 
his  constitutional  powers  to  the  fullest  extent  in  the  direction  of  complete 
budget  making,  but  doubtless  for  the  additional  reason  that  the  incentive  to 
do  so  is  slight  in  view  of  the  impossibility  of  really  securing  legislative 
action  under  proper  scrutiny  and  in  the  light  of  effective  public  discussion. 
All  the  expedients  have  proved  ineffective  due  to  lack  of  provision  for 
responsible  executive  leadership  in  matters  that  are  of  fundamental  im- 
portance to  the  administration. 

Constitutional  Requirement  of  Executive  to  Frame,  Submit  and  Defend 
Money  Bills 
The  mere  fact  that  there  is  an  increasing  number  of  states  which  are 
giving  the  governor  the  power  to  veto  items  in  appropriation  bills  is 
indicative  of  a  condition  demanding  change.  Inasmuch  as  the  finances  in 
our  states  call  for  more  systematic  attention  and  centralized  and  respon- 
sible control,  sound  public  policy  requires  that  effective  measures  be 
adopted  for  giving  the  governor  a  power  over  the  budget  which  is  com- 
mensurate with  the  present  responsibility  really  vested  in  him  as  the 
chief  "  executive  "  by  popular  opinion.     Nothing  short  of  a  thorough- 

77 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

going  treatment  of  the  subject  which  will  impose  on  the  governor  the 
duty  of  formulating,  submitting  and  defending  money  measures  will 
solve  the  problem  of  securing  economy  and  responsibility  in  the  appro- 
priation and  management  of  public  funds.* 

Constitution  Lacking  in  Means  for  Enforcing  Executive 
Responsibility 

Not  only  is  the  constitution  lacking  in  the  essentials  for  developing 
leadership,  but  it  is  also  wholly  lacking  in  provisions  for  enforcing 
responsibility.  In  the  discussion  of  the  "  electorate  "  and  "  the  organiza- 
tion and  procedure  of  the  legislature,"  it  was  pointed  out  that  no  means 
has  been  provided  for  defining  and  submitting  issues  to  the  voters. 
(Above,  pp.  21-24.) 

No  Provision  for  Making  the  "  Opposition  "  Effective 

As  has  been  shown,  the  organized  official  agency  of  the  state  for  for- 
mulating and  discussing  issues  and  matters  of  public  policy  and  admin- 
istrative proposals  is  the  legislature — an  independent  elected  body 
representing  constituencies.  It  has  also  been  shown  that  responsible 
leadership  is  necessary  to  the  definition  of  issues  as  well  as  the  location  of 
official  responsibility.  The  big  principle  that  has  been  missed  in  our  con- 
stitution making  and  in  establishing  the  procedures  governing  the  legisla- 
tive body  has  been  the  necessity  for  making  the  "  opposition  "  effective, 
and  bringing  political  criticism  to  some  positive  test  before  the  electorate. 

The  Provision  for  the  Prompt  Retirement  of  Officers  Who  Are  A^ot  Sup- 
ported  by  a  Majority 
The  principles  of  responsiveness  and  responsibility  in  a  representa- 
tive government  both  call  for  a  means  whereby  officers  who  do  not  have 
the  support  of  an  undoubted  and  united  majority  shall  retire.  This  is 
true  of  both  public  and  private  management.  The  methods  for  making 
the  "opposition"  effective  are:  (1)  to  put  it  in  a  position  to  prevent 
executive  action  that  does  not  have  the  approval  of  a  majority  of  repre- 
sentatives, and  to  prevent  legislative  action  by  a  majority  of  representa- 
tives that  does  not  have  the  approval  of  the  executive;  (2)  to  provide 
for  a  prompt  reference  to  the  electorate  in  case  these  two  independent 
branches  cannot  come  to  an  agreement. 

The  Power  of  Executive  Dissolution 

As  in  the  case  of  the  constitutional  provisions  for  executive  leader- 
ship we  have  gone  part  way  and  stopped.     We  have  provided  for  the 


*See  Proceedings  of  the  New  York  Academy  of  Political  Scier,<ce^-ior  October, 
1914,  pp.  141-148,  for  a  more  adequate  discussion  of  the  subject  and  for  definite 
constructive  proposals. 

78 


RELATIONS    OF    LEGISLATURE    TO    EXECUTIVE 


negative  but  not  for  the  positive  action.  An  efit'ective  way  of  enforcing 
both  responsiveness  and  responsibihty  is  to  give  to  the  executive  power 
to  dissolve  the  legislative  body  and  at  the  same  time  make  the  executive 
conform  in  his  action  to  the  decision  of  the  electorate  on  the  issues  pre- 
sented. Not  having  provided  the  machinery  that  is  known  to  operate 
effectively  in  both  public  and  private  institutions  controlled  by  repre- 
sentative bodies,  the  makers  of  American  constitutions  have  again  resorted 
to  new  and  untried  expedients — temporized  mechanism  and  various 
roundabout  and  laborious  procedures  for  securing  responsibility  to  the 
electorate. 

Historic  Reasons  for  Failure  to  Adopt  Constitutional  Plan  That  Provides 
for  Responsive  and  Responsible  Government 

Aside  from  the  fact  that  the  mechanics  of  responsible  government 
under  a  representative  system  had  not  been  developed  at  the  time  our 
political  independence  was  won,  the  circumstances  surrounding  the  estab- 
lishment of  the  republic  were  unfavorable  to  a  government  in  which  pro- 
vision was  made  for  enforcing  responsiveness  a;id  responsibility  (see 
above,  pp.  55-58).  There  had  been  years  of  ineft'ective  protest  against 
what  was  regarded  as  the  unwarranted  use  of  executive  power. 
Following  this  came  the  Revolution — a  phase  of  opposition  to  the  reac- 
tionary monarch,  which  in  this  country  brought  about  national  indepen- 
dence, but  which  in  England  finally  resulted  in  the  establishment  of  a 
procedure  for  establishing  and  controlling  responsible  leadership.  With- 
out experience  to  guide  them,  as  a  safeguard  against  usurpation,  the 
American  mmd  became  attached  to  another  principle  of  control,  viz. :  to 
render  persons  in  office  comparatively  harmless  by  limiting  their  powers 
through  innumerable  checks  which  hamper  positive  action  but  do  not 
prevent  neglect,  wastefulness  and  malfeasance. 

Provision  Made  to  Prevent  a  Misuse  of  the  Poivers  of  Government 

No  way  having  been  found  to  make  governing  agents  responsible 
to  the  people  for  the  manner  in  which  their  powers  were  exercised,  the 
initial  plan  of  employing  constitutional  inhibitions  and  one  branch  of  the 
government  to  prevent  abuse  of  power  by  another  was  developed  to  such 
a  degree  of  complication  that  it  has  at  last  broken  down  by  its  own 
weight  and  has  forced  upon  public  attention  the  need  of  change.  Nowhere 
in  the  world  is  there  such  a  chaos  of  conflicting  powers,  agencies,  authori- 
ties, officers  and  jurisdictions. 

Use  of  the  Governor  as  a  Negative  Force  Against  the  Legislature 

At  the  very  beginning  of  the  history  of  New  York  as  a  state  fear  was 
expressed  lest  "  laws  inconsistent  with  the  spirit  of  the  constitution  or 

79 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

with  the  pubHc  good  may  be  hastily  and  inadvisedly  passed."  In  1777, 
therefore,  it  was  ordained  "  that  the  governor  for  the  time  being,  the 
chancellor  and  tlie  judges  of  the  supreme  court,  or  any  two  of  them, 
together  with  the  governor,  shall  be  and  hereby  are  constituted  a  council 
to  revise  all  bills  about  to  be  passed  into  laws  by  the  legislature  *  *  * 
and  that  all  bills  which  have  passed  the  senate  and  the  assembly  shall, 
before  they  become  laws,  be  presented  to  said  council  for  their  revisal 
and  consideration;  and  if  upon  such  revision  and  consideration,  it  should 
appear  improper  to  the  said  council  or  a  majority  of  them,  that  the  said 
bill  shall  become  a  law  of  this  state,  that  they  shall  return  the  same, 
together  with  their  objections  thereto  in  writing,  to  the  senate  or  house 
of  assembly  (in  whichsoever  it  shall  have  originated),  who  shall  enter 
the  objections  sent  down  by  the  council  at  large  in  their  minutes,  and 
proceed  to  reconsider  the  said  bill."  If  any  bill  so  returned  by  the  council 
of  revision  was  repassed  by  a  majority  of  two-thirds  in  both  houses,  it 
became  a  law.  With  a  view  to  preventing  unwise  legislation  the  governor 
was  also  given  the  power  to  prorogue  the  legislature  for  a  period  of  not 
more  than  sixty  days. 

These  methods  of  executive  control  over  legislation  were  abandoned 
in  the  constitution  of  1821  which  swept  away  the  council  of  revision 
and  vested  the  straight  veto  power  in  the  governor.  Sitice  that  date  the 
chief  executive  has  enjoyed  the  veto  power  alone  and  all  of  the  states 
of  the  union  except  North  Carolina  have  now  adopted  the  principle. 

The  Use  of  the  Courts  as  a  Negative  Force 

Between  the  years  1777  and  1821,  however,  a  radical  change  had 
taken  place  in  the  growth  of  the  doctrine  of  judicial  control  over  legisla- 
tion. A  number  of  state  statutes  had  been  declared  invalid  on  consti- 
tutional grounds  in  several  of  the  states  before  the  end  of  the  eighteenth 
century,  and  in  1803,  Chief  Justice  Marshall  laid  down  the  doctrine  in 
unmistakable  language  in  the  case  of  Marbury  vs.  Madison,  which  at 
once  became  a  precedent  for  all  other  courts.  As  early  as  1811  judicial 
control  over  legislation  was  used  in  New  York,  in  the  case  of  Dash  vs. 
Van  Kleech  (7  Johns.  477),  and  five  years  later  Kent  blocked  the  en- 
forcement of  an  act  of  the  legislature  on  the  ground  of  its  invalidity.  From 
that  time  forward,  the  principle  that  it  was  the  duty  of  the  courts  to  act 
as  a  check  on  the  legislature  was  applied  with  increasing  frequency. 

Almost  correlative  with  this  growth  of  judicial  power  was  the  multipli- 
cation of  specific  constitutional  limitations  on  the  legislature.  In  the 
beginning,  almost  sovereign  power  was  entrusted  to  that  branch  of  the 
government,  but  by  steady  process  its  authority  over  finances,  the  affairs 
of  cities,  special  legislation,  and  even  its  own  procedure  has  been  cut 
away  until  it  has  lost  a  large  share  of  its  former  high  prerogatives. 


RELATIONS    OF    LEGISLATURE    TO    EXECUTIVE 


Our  System  of  Checks  and  Balances 

To  this  system  of  pitting  the  governor  and  the  courts  against  the 
legislature  are  added  innumerable  other  devices  for  breaking  and  distri- 
buting authority  and  responsibility  until  no  one  knows  who  is  responsible 
for  anything,  except  the  unofficial  boss,  whose  tenure  usually  outlasts  that 
of  all  the  official  agents.  Among  these  devices  may  be  mentioned  the 
following : 

1.  A    large    variety    of    methods    of    appointing    administrative 

officers    so    that    no    single    agency    can    claim    complete 
authority. 

2.  Diversity  in  the  terms  of  officers,  applied  also  to  the  legislature 

where  senators  hold  for  two  years  and  assemblymen  for 
one  year. 

3.  Diversity  in  the  methods  of  removal,  various  agencies  being 

employed  singly  or  in  conjunction  with  one  another. 

4.  Overlapping  terms  in  the  same  commission  or  board,  so  that  no 

new  policies  can  be  speedily  adopted. 

5.  Popular  election  of  some  executive  officers  and  appointment  of 

others  equally  important. 

6.  The  necessity  of  constant  resort  to  the  courts  to  determine  the 

limitations  on  officers  in  purely  administrative  matters. 

7.  Distribution  of  kindred  functions  among  many  authorities  in 

order  to  prevent  centralization. 
Development  of  the  Irresponsible  Boss. 

Operating  under  the  system  of  checks  and  balances — on  the  doctrine 
of  "  original  sin  "  in  politics,  that  no  one  can  be  safely  entrusted  with  any 
substantial  authority — the  legislature,  through  its  control  over  the  finances 
and  over  the  structure  and  powers  of  offices  and  officers,  developed  an 
administrative  system  in  which  no  leadership  was  contemplated.  The 
result  was  that  a  non-official,  outside,  irresponsible,  partisan  organization 
came  to  have  a  dominant  influence  in  determining  what  should  be  done, 
and  the  affairs  of  state  were  shaped  through  what  came  to  be  known 
as  the  American  system  of  "  log-rolling  "  legislation  and  "  pork  barrel " 
politics.  This  irresponsible  leadership  has  been  the  most  conspicuous 
factor  in  the  American  governmental  system  for  the  last  140  years — a 
system  which  depends  on  satisfying  the  demands  of  small  independent 
geographical  constituencies  through  representatives  whose  controlling 
motives  have  been  to  commend  themselves  to  the  voters  of  their  locality 
by  furthering  schemes  for  local  development  and  by  employing  methods 
styled  "  invisible  government  "  under  the  leadership  of  an  irresponsible 
"  boss." 
Reaction  Against  Irresponsibility 

During  the  first  century  after  the  Revolutionary  War,  while  each 

81 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

local  constituency  represented  was  striving  for  capital  and  population  with 
which  to  develop  natural  resources  and  there  was  little  else  than  local 
economic  interests  to  serve,  this  system,  in  its  various  phases  called  the 
"  spoils  system,"  was  ardently  supported  or  complacently  endured.  Later, 
when  (through  the  development  of  transportation  and  the  broadening 
demands  for  commerce)  the  constituencies  that  looked  to  the  govern- 
ment came  to  comprehend  the  whole  state  or  the  whole  nation,  and  the 
people  themselves  found  that  they  must  of  necessity  rely  more  largely 
on  public  institutions  for  protection  and  for  the  promotion  of  conditions 
favorable  to  their  comfort  and  happiness,  the  methods  that  grew  up  as  a 
necessary  part  of  an  irresponsible  management  were  resented. 

The  Adoption  of  Palliatives  to  Little  Purpose 

There  can  be  no  doubt  as  to  the  widespread  dissatisfaction  with  pre- 
vailing political  methods.  There  can  be  no  doubt  as  to  the  presence  of 
conditions  described.  The  defects  in  our  system  have  been  so  vital  as  to 
cause  some  to  question  the  desirability  of  retaining  the  representative 
system.  There  have  been  many  advocates  of  direct  control  through  the 
electorate.  In  the  popular  mind  the  failures  of  representative  govern- 
ment under  our  present  conditions  of  operation  have  been  often  attrib- 
uted to  the  system  itself  rather  than  to  our  own  failure  to  provide  the 
essentials  to  its  successful  operation.  Here,  as  in  other  cases,  the  reaction 
of  popular  dissatisfaction  has  caused  the  introduction  of  new  devices,  the 
patching  up  of  an  old  defective  mechanism  rather  than  the  remodelling 
of  it  in  such  manner  as  to  adapt  it  to  the  work  to  be  done.  Out  of  this 
dissatisfaction  has  sprung  a  large  number  of  constitutional  and  legislative 
devices,  among  which  are — 

1.  The  direct  primary  which  it  was  thought  would  destroy  "the 

boss  "  and  make  all  party  nominees  immediately  respon- 
sible and  responsive  to  the  party  electorate. 

2.  The  initiative  and  referendum  whereby  the  actual  legal  meas- 

ures embodying  the  issues  of  politics  can  be   submitted 
directly  to  the  voters   for  their  judgment. 

3.  The  recall  through  which  officers  not  responsive  to  popular  will 

may  be  ousted  from  their  places  of  power. 

To  attribute  the  wide  extension  of  these  political  devices  to  a  tem- 
porary wave  of  radicalism  or  to  a  determination  to  overthrow  represen- 
tative government  would  be  a  fundamental  error.  The  most  radical  and 
revolutionary  parties  of  Europe  have  never  spent  any  time  or  effort  in 
working  for  such  institutional  methods.  Their  wide  extension  has  been 
due  to  a  sincere  quest  for  a  responsible  and  responsive  system  of  govern- 
ment. As  a  result,  no  doubt,  it  has  been  possible  to  get  issues  i)efore  the 
people  and  to  introduce  a  certain  amount  of  responsiveness  and  responsi- 

82 


RELATIONS    OF    LEGISLATURE    TO    EXECUTIVE 


bility,  where  before  it  was  lacking,  but  this  has  been  done  at  an 
enormous  cost,  after  long  delays,  and  by  employment  of  very  complex 
and  labored  processes,  whereas,  by  following  well-known,  well-tried 
constitutional  expedients,  very  simple  and  effective  methods  could 
be  employed  to  insure  responsibility  for  leadership,  for  honesty,  for  effici- 
ency and  economy. 

What  the  people  have  failed  to  realize  is  that  the  cause  of  their 
distress  has  been  fundamental,  not  incidental  in  character;  that  they  are 
confronted  by  a  condition  that  requires  radical  operation  instead  of  pal- 
liatives— a  constitutional  adjustment  which  will  bring  into  our  political 
system  the  thoroughly  tested  mechanism  that  makes  for  responsible  gov- 
ernment and  renders  impossible  irresponsible  leadership. 

Nezv  York  Practice  a  Perversion  of  the  Principle  of  Representative 
Government 

It  is  a  fact  which  should  not  escape  attention  that  the  conditions  under 
which  governments  have  been  unresponsive  to  public  opinion  and 
irresponsible,  dishonest,  inefficient,  and  wasteful  have  been  those  in 
which  no  provisions  have  been  made  for  the  development  of  executive 
leadership  and  the  enforcement  of  executive  responsibility,  and  that 
among  the  most  conspicuous  examples  has  been  the  government  of 
the  state  of  New  York — under  constitutional  provisions  in  which,  in 
common  with'  our  other  American  states,  the  principles  of  direct  elec- 
tion of  the  executive  and  short  tenures  have  been  relied  on  in  lieu 
of  acknowledged  and  accepted  leadership  held  to  true  responsibility. 
What  we  have  failed  to  see  is  that  there  can  be  no  such  thing  as  an 
intelligent  government  without  leadership,  whether  this  may  have  to  do 
with  public  or  private  affairs. 

Nor  must  we  rely  alone  on  the  experience  of  political  bodies  for 
this  conclusion.  Miscarriages  in  private  corporate  management  have 
been  largely  due  to  the  same  cause — failure  of  members  to  provide 
themselves  with  the  constitutional  means  for  utilizing  official  agencies 
in  developing  support  for  responsible  leadership  on  the  one  hand  and  an 
effective  opposition  to  bad  management  on  the  other — for  locating 
responsibility,  defining  issues,  and  having  these  directly  related  to 
official  acts — in  short,  a  mechanism  adapted  to  making  the  management 
of  affairs  responsible.  Experience  has  demonstrated  that  an  institution 
in  which  there  is  no  leadership  is  managed  worse  than  the  one  in  which 
leadership  is  developed,  even  though  the  leader  be  an  "  irresponsible 
boss."  With  all  of  the  outcry  against  the  boss,  the  common  sense  of  the 
community  will  support  him  until  some  constitutional  provision  is  made 
for  official  leadership,  and  responsible  leadership  must,  of  necessity,  be 
located  in  the  executive. 

83 


CHAPTER    VIII 

THE    INDEPENDENT    AUDITOR 

Defects  of  the  Constitution  and  Statute  Law  Providing  for  Current 
Review  and  Approval  of  Financial  Transactions 
One  of  the  prime  reasons  for  the  estabhshment  of  representative 
government  was  to  call  the  executive  to  account  for  expenditures.  It  is 
true  that  the  protest  which  led  to  the  conference  between  King  John 
and  the  barons  was  in  the  main  against  "  taxation  without  representation," 
but  a  necessary  prerequisite  to  obtaining  the  consent  of  representatives 
has  at  all  times  been  an  executive  accounting. 

Audit  by  the  Legislative  Body  as  a  Whole 

In  some  countries  the  king  or  his  immediate  representatives  are  re- 
quired to  appear  personally  and  make  the  statement  with  respect  to  the 
expenditures  under  past  authorizations  by  the  legislative  body.  "  Before 
the  executive  can  obtain  consent  to  further  proposals  for  money-raising 
he  must  do  two  things ;  he  must  satisfactorily  explain  what  he  did  with 
moneys  previously  obtained;  he  must  satisfactorily  explain  what  he  pro- 
posed to  do  with  future  grants."  It  was  from  this  practice  of  listening 
CO  a  verbal  statement  or  account  of  expenditures  that  the  term  "  audit- 
mg  "  arose. 

Audit  by  Legislative  Committee 

The  next  step  in  the  development  of  a  procedure  for  enforcing 
accountability  through  an  independent  audit  was  the  appointment  of  an 
auditing  committee.  Instead  of  all  of  the  members  of  the  representative 
body  being  required  to  attend  while  an  accounting  was  made,  or,  to 
put  it  in  another  way,  instead  of  the  audit  being  limited  to  the  attention 
that  could  be  given  by  a  large  body,  a  few  members  were  designated 
as  a  special  committee  to  take  such  time  and  to  use  such  means  as  were 
appropriate  and  needful  to  determine  whether  the  public  money  had  been 
spent  honestly  and  according  to  legal  requirements.  This  form  of  exami- 
nation also  proved  unsatisfactory  as  public  business  became  more  ex- 
tensive and  more  complex.  Examination  by  an  auditing  committee  of  the 
legislative  body  came  to  be  merely  perfunctory,  unless  perchance  it  hap- 
pened that  the  work  of  the  committee  was  dominated  by  an  "  opposition  " 
member  or  party.  In  this  event  the  work  of  the  committee  might  prove 
to  be  quite  exhaustive,  might  have  the  effect  of  seriously  embarrassing 
the  executive  in  putting  him  on  the  defensive,  but  it  seldom  met  the  strict 
requirements  of  an  audit. 

Creation  of  an  Independent  Auditor 

A  third  step  in  advance  was  the  creation  of  an  auditing  department 
or  office,  which  was  made  independent  of  the  executive.     This  consisted 

84 


NEED    FOR    AN    INDEPENDENT   AUDITOR 


of  an  officer  with  such  staff  as  he  might  find  necessary,  who  was  not  in 
any  manner  responsible  for  authorizing  contracts  and  payments  or  for 
disbursing  pubhc  funds,  but  whose  duty  it  was  to  review  currently  the 
business  transactions,  to  inspect  critically  documents,  vouchers  and 
accounts,  and  to  determine  whether  they  had  been  legal  and  just.  He 
also  went  occasionally  into  questions  of  revenue  raising  to  determine 
whether  or  not  the  amounts  charged  and  collected  and  the  processes  used 
for  establishing  rates  of  charges  and  collections  were  in  accordance  with 
the  authority  which  had  been  given  for  raising  revenue;  to  determine 
whether  all  of  the  moneys  collected  had  been  properly  accounted  for; 
and  whether  proper  steps  were  being  taken  to  collect  charges  that  had 
come  into  arrears.  The  function  of  this  office  was  something  more  than 
that  of  an  auditor.  That  is,  it  had  the  effect,  not  only  of  giving  to  the 
state  the  benefit  of  a  verification  of  the  legality  of  transactions,  but,  being 
current  in  its  operation,  the  review  of  vouchers  and  accounts  had  the 
effect  of  preventing  the  consummation  of  transactions  that  would  lead  to 
the  subversion  of  public  funds.  The  independent  auditor  came  to  be  a 
comptroller  of  expenditures — a  person  who  was  in  a  position  to  prevent 
irregularity  and  losses  due  to  discoverable  neglect  or  attempted  diversion, 
which  were  reduced  to  a  minimum. 
Provisions  of  Constitutional  Lazv  in  New  York 

No  provision  was  made  in  the  first  constitution  of  the  State  of  New 
York  for  an  auditor  or  comptroller.  The  office  was  established  by  statute 
about  the  beginning  of  the  last  century,  and  in  1821  the  office  of  "  comp- 
troller "  was  given  a  constitutional  standing.  By  the  constitution  of  that 
year  the  comptroller,  as  well  as  the  treasurer  and  a  number  of  other 
officers  were  made  independent  of  the  governor  by  a  provision  for  their 
appointment  as  follows : 

"  The  senate  and  assembly  shall  each  openly  nominate  one 

person   for  said  office  respectively ;  after  which  they  shall  meet 

together.     If  they  shall  agree  in  their  nominations  the  person  so 

nominated   shall   be   appointed   to   the   office    for   which   he   shall 

be  nominated.     If  they  shall  agree  the  appointment  shall  be  made 

by  joint  ballot  of  the  senators  and  representatives  of  the  assembly." 

The  constitution  of    1846  provided  that  the  comptroller  "  shall  be 

chosen  at  a  general  election  and  shall  hold  office  for  two  years,"  which 

provision  has  been  reincorporated  in  the  present  constitution. 

Defects  of  the  Present  Constitutional  Provisions 

Defects  in  the  constitution  pertaining  to  the  office  of  comptroller  are 
of  two  classes : 

1.     It  has  established  the  office,  but  has   failed  to  prescribe  the 
duties  which  are  fundamental  to  it 
85 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

2.     It  has  failed  to  protect  the  independent  character  of  the  audit- 
ing functions. 

As  constructive  recommendations  are  to  be  incorporated  in  a  subsequent 
report  the  first  of  these  defects  will  be  left  without  discussion  at  this 
time.  The  comment  in  this  report  bears  entirely  on  the  second  constitu- 
tional defect,  namely,  on  the  results  of  the  failure  to  protect  the  office, 
or,  to  put  it  in  another  way,  on  the  acts  of  the  legislature  which  have 
laid  upon  the  office  duties  and  functions  that  are  at  variance  with  its 
constitutional  purpose. 

Defects  in  Legislation  Governing  the  Office 

The  history  of  the  comptroller's  office  would  be  an  interesting  chap- 
ter in  a  study  of  irresponsible  government.  It  is  sufficient  for  the  present 
purpose,  however,  to  describe  the  result.  Being  left  almost  entirely  in 
the  control  of  the  legislature  and  in  its  establishment  being  made  a 
creature  of  statute  law,  the  office  was  assigned  three  absolutely  discord- 
ant and  irreconcilable  duties,  namely : 

1.  The    comptroller    was    required    to    determine    what    revenue 

charges  should  be  set  up  and  what  amounts  were  to  be 
collected. 

2.  The   comptroller   was   also   required   to   collect   the   revenues, 

the  amount  of  which  was  to  be  determined  by  his  own 
ofificial  acts. 

3.  The  comptroller  was   required  to   audit   and   verify   the  col- 

lections as  well  as  the  accruals  which  were  made  in  his 
own  office. 
Here  we  have  an  auditing  office,  established  as  a  part  of  the  con- 
stitutional machinery  for  fixing  and  enforcing  administrative  responsi- 
bility, and  yet  laboring  under  administrative  duties  assigned  to  it  by 
statute,  the  effect  of  which  is  to  destroy  the  disinterestedness  of  its  audit 
and  verification.  The  auditor  as  an  instrument  for  enforcing  responsi- 
bility has  had  turned  over  to  him  by  an  irresponsible  representative  gov- 
ernment the  very  autocratic  powers  that  the  representative  system  was 
established  to  correct,  when  these  powers  were  exercised  by  the  executive. 

The  Present  Organisation  of  the  Office 

Lest  it  be  thought  that  the  conclusion  above  reached  is  unwarranted, 
the  present  organization  is  shown  in  outline  below — arranged  by  working 
iniits  and  subdivisions  of  personnel,  according  to  functions  performed 
by  each  (previous  to  the  law  of  1915-). 

1.     Activities  having  to  do  with  determining  what  revenue  charges 
shall  be  set  up  for  collection. 


NEED    FOR    AN    INDEPENDENT    AUDITOR 


Transfer  Tax  Bureau 

Imposes  transfer  tax  and  penalties  under  the  trans- 
fer tax  law. 

Corporation  Tax  Bureau 

Locates  taxable  corporations ;  obtains  evidence  nec- 
essary to  levy  taxes ;  makes  the  levies ;  handles  matters 
relating  to  reduction  of  capital  stock,  etc. 

2.  Activities  having  to  do  with  collecting  revenues. 

Transfer  Tax  Bureau 

Collects  transfer  taxes  imposed  under  transfer  tax 
law. 

Corporation  Tax  Bureau 

Collects  taxes  imposed  on  corporations ;  issues  war- 
rants for  unpaid  taxes,  etc. 

School  Debt  Tax  Bureau 

Collects  taxes  due  under  school  debt  tax  law. 

3.  Activities  which  have  to  do  with  auditing  financial  transac- 

tions. 

Finance  Bureau 

Has  supervision  over  auditing  of  all  accounts 
against  state ;  supervises  sinking  funds,  trust  funds  and 
bond  sales. 

Audit  Bureau 

Makes  audits  of  state  institutions,  boards,  commis- 
sions and  departments ;  passes  on  contracts  for  mainte- 
nance of  state  institutions;  keeps  appropriation  and  retire- 
ment fund  accounts ;  prepares  financial  and  budgetary 
statements ;  prepares  the  comptroller's  annual  report, 
etc. 
The  Land  Tax  Bureau 

Has  charge  of  matters  relating  to  the  admission  and 
rejection  of  taxes  on  non-resident  lands;  prepares  deeds 
for  land  sold  for  taxes ;  examines  assessment  rolls ; 
reports  on  matters  referred  by  the  commissioners  of 
land  ofifice ;  makes  computations  relating  to  state  aid,  to 
highways,  etc. 

Stock  Transfer  Tax  Bureau 

Examines  records  of  companies,  transfer  agents  and 
persons  engaged  in  the  brokerage  business  to  determine 
whether  required  tax  is  paid. 
87 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Mortgage  Tax  Bureau 

Audits  and  supervises  accounts  of  county  treasurers 

in    connection    with    moneys    received    from    recording 

officers. 

License  Bureau 

Supervises  private  bankers,  steamship  ticket  agents, 

etc. 

Bureau  of  Canal  Affairs 

Supervises  financial  transactions  relating  to  canals. 

Bureau  of  Highways 

Audits  accounts  of  highways  department ;  examines 

contracts   for  construction,  audits  payment  of   estimate, 

etc. 

State  Printing  Division 

Supervises  expenditures   for  state  printing. 
Organic  Changes  Provided  for  in  Recent  Bill 

The  foregoing  represents  the  organization  of  the  comptroller's  office, 
as  it  existed  at  the  time  the  descriptive  report  of  the  government  of  the 
state  was  prepared  and  as  it  exists  today.  What  is  known  as  the  Hin- 
man  Act  was  signed  only  a  few  days  since.  This  act  took  away  from 
the  comptroller  certain  tax-collecting  agencies  which  had  charge  of 
corporation,  transfer,  franchise  and  mortgage  taxes.  It  was  a  step  in 
the  right  direction,  but  still  the  comptroller,  through  his  ex-officio  con- 
nections and  other  administrative  responsibilities,  is  far  from  being  an 
"independent  auditing  officer. 

Section  179  of  the  Hinman  Act  provides  specifically  that,  although 
the  powers  and  duties  formerly  conferred  upon  the  comptroller  in  relation 
to  the  assessment,  determination,  revision,  readjustment  and  imposition 
of  corporation  taxes  shall  be  transferred  to  the  new  state  tax  department, 
"  the  duties  of  collecting  corporation  taxes  assessed  and  the  refunding  of 
such  taxes  as  paid  "  shall  continue  to  be  exercised  and  performed  by 
the  state  comptroller.  It  is  obvious  that  the  bill  does  not  take  out  of 
the  comptroller's  office  all  of  its  discordant  functions.  It  does  not  provide 
for  its  complete  independence.  Although  the  work  may  be  followed 
up  on  more  consistent  lines,  the  office  is  not  protected  against  future  inva- 
sions by  legislative  enactment.  This  office,  which  is  so  essential  to  the 
working  plan  for  making  the  government  responsible  and  for  protect- 
ing the  state  from  exploitation,  can  itself  only  be  protected  by  constitu- 
tional enactment.  It  is  essential  that  the  comptroller,  as  the  auditor-general 
of  the  State  of  New  York,  be  set  aside  and  entirely  isolated  so  that 
pressure  may  not  be  brought  to  bear  upon  him  to  permit  the  office  of 
audit  to  be  used  for  ends  that  are  inconsistent  with  its  underlying 
purpose. 


CHAPTER  IX 

THE  GOVERNOR  AND  THE  ADMINISTRATION 

So  far  attention  has  been  given  to  the  means  provided  for  deter- 
mining the  pubhc  will,  and  for  impressing  this  on  officers  charged  with 
the  duty  of  performing  services  required.  What  has  been  said  refers 
to  the  representative  side  of  the  enterprise,  viz.,  to  the  "  electorate,"  to 
the  "  representative  "  body,  and  to  the  relations  of  the  representative  body 
to  the  administration.  Accepting  Anson's  distinction,  which  has  already 
been  twice  mentioned,  the  report  has  thus  far  dealt  with  the  constitu- 
tional means  of  deciding  "  what  to  do."  It  remains  to  evaluate  the 
means  provided  for  "  doing  it." 

IVJiat  is  Meant  by  "Administration  " 

The  word  "  administration  "  is  from  a  Latin  verb,  which  means  to 
manage,  to  execute.  Management  has  to  do  with  the  preparation,  sub- 
mission, approval  and  execution  of  plans.  In  a  representative  system  the 
board  is  a  part  of  management  to  the  extent  that  its  approval  is  neces- 
sary.    Otherwise  management  is  primarily  an  executive  function. 

Problems  of  Management 

The  problems  of  management  fall  into  two  general  classes  corre- 
sponding to  functions  or  activities  of  similar  character,  viz.:  (1)  those 
which  have  to  do  with  the  state  or  other  institution  acting  as  a  proprietor 
— activities  of  a  kind  that  must  be  carried  on  no  matter  how  extensive  its 
functions;  (2)  those  functions  or  activities  in  the  nature  of  services 
rendered  to  the  public — things  done  in  carrying  out  the  purposes  for 
V;/hich  the  institution  exists.  The  first  of  these  will  be  hereinafter  re- 
ferred to  as  proprietary  functions;  the  second  will  be  called  in  contra- 
distinction public  service  functions.  Each  institution  has  similar  pro- 
prietary functions  and  problems,  but  the  public  service  functions  dififer 
as  widely  as  there  are  different  institutions.  Each  institution  has  its 
own  purpose  and  an  organization  and  technique  developed  or  to  be  de- 
veloped suited  to  its  work. 

Proprietary  Functions  and  Problems 

Among  the  common  proprietary  functions  or  groups  of  activities  are 
these : 

1.  Obtaining  and  caring  for  the  funds  required,  whether  raised 

as  revenue  or  by  borrowing. 

2.  The  employing  and  caring  for  the  personnel  needed  on  the 

enterprise. 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

3.  Acquiring  and   caring    for   the   supplies   and   equipment   and 

properties  required  to  make  the  personnel  effective. 

4.  Paying  the  debts  and  current  obligations  of  the  government. 
While  there  are  adaptations  within  these  groups  of  activities,  they 

constitute  only  variants  of  methods  for  doing  the  same  kind  of  thing  and 
have  in  them  common  consideration  for  the  administrator. 

Public  Service  Functions  and  Problems 

The  public  service  functions  differ  with  each  institution  or  enter- 
prise. Those  which  are  carried  on  by  the  government  of  the  state  may 
be  grouped  as  follows: 

1.  Military  protection. 

2.  Promotion  of  public  education,  art,  science  and  recreation. 

3.  Construction,  operation  and  maintenance  of  public  works. 

4.  Promotion  of  health  and  safety. 

5.  Regulation  of  public  service  corporations. 

6.  Regulation  of  insurance  and  banking. 

7.  Promotion  of  agriculture  and  industry. 

8.  Protection  and  promotion  of  the  interests  of  labor. 

9.  Care  and  education  of  the  dependent,  defective  and  delin- 

quent classes. 

General  Requirements  of  Organisation  for  Administration 

As  in  the  case  of  policy  determination,  definite  expedients  and  insti- 
tutional adaptations  have  been  developed  for  management  and  mastery 
of  details  of  administration.  The  technique  varies  widely,  but  each  or- 
ganization when  considered  broadly  may  be  characterized  as  belonging 
to  one  or  another  of  the  following  types : 

1.  A  type  in  which  executive  control  is  centralized — one  which 

has  at  its  head  a  chief  executive  through  whom  persons 
in  charge  of  the  several  functions  are  held  responsible. 

2.  A  type  in  which  executive  control  is  decentralized — one  which 

has  many  executives  independent  of  each  other. 

3.  A  nondescript  type  of  organization — one  whose  development 

seems  to  have  been  governed  by  no  principle — in  which 
some  of  the  departmental  executives  may  be  held  re- 
sponsible through  an  officer  who  is  called  chief  executive, 
other  departmental  executives  may  be  independent  and 
still  others  may  hold  such  an  ill-defined  position  that  they 
are  uncertain  as  to  whom  they  are  responsible. 

Executive  and  Departmental  Organisation  of  the  State 

The  organization  provided  for  and  developed  under  the  constitu- 
tion  for  the  government  of  the  State  of  New  York  is  of  the  third  or 

90 


THE    GOVERNOR    AND    THE    ADMINISTRATION 


nondescript  type.  As  has  been  amply  proved  by  more  than  a  century 
of  use,  this  type  has  nothing  in  common  experience  or  human  reason  to 
commend  it.  In  the  management  of  affairs  there  are  conditions  under 
which  decentrahzation  is  desirable — at  least,  in  which  the  principle  has 
worked  with  fair  satisfaction.  The  circumstances  which  favor  decen- 
tralization are  those  favorable  to  the  location  and  enforcement  of  admin- 
istrative responsibihty  for  carrying  on  different  public  service  functions 
through  independent  executives.  Even  in  this  event,  it  is  found  desirable 
to  centralize  certain  proprietary  functions.  For  example,  the  State  of 
New  York  has  seen  fit  to  incorporate  separately  the  department  of  educa- 
tion to  carry  on  a  class  of  functions.  It  has  not  been  found  desirable, 
however,  to  maintain  a  separate  organization  for  obtaining  funds,  either 
by  tax  levies  or  borrowing  for  public  school  purposes.  The  city  of 
Philadelphia  likewise  has  recently  set  up  the  department  of  education  as 
an  independent  establishment,  but  makes  the  controller  and  the  treasurer 
of  the  city  ex-officio  auditor  and  treasurer  of  the  school  district.  This 
is  a  common  arrangement  as  between  counties  and  cities  included  within 
tliem.  The  city  of  New  York  and  the  five  counties  (New  York,  Bronx, 
Queens,  Kings  and  Richmond),  all  use  the  same  machinery  for  prac- 
tically all  the  proprietary  functions.  They  are  separately  organized  for 
administering  public  service  functions.  The  state  uses  the  machinery 
of  the  city  of  New  York  for  carrying  on  the  proprietary  functions  inci- 
dent to  the  support  of  the  public  service  commission  for  the  first  district, 
though  there  is  neither  executive  nor  board  control  over  the  public  service 
function. 

Principles  Governing  Determination  as  to   Whether  Executive  Control 
Should  Be  Centralized 

The  principles  governing  determination  as  to  whether  executive  con- 
trol should  be  centralized  are  these : 

1.  Executive  control  should  be  centralized  in  every  instance  where 

it  will  make  for  increased  efficiency  and  economy 

2.  Executive   control   should  be   centralized   with   respect  to  all 

functions  whether  proprietary  or  for  public  service  when 
they  are  iuterdependent  or  decentralization  will  lead  to 
confusion  of  responsibility,  conflict  of  authority,  and 
delay 

3.  Executive  control  should  be  decentralized  wherever  and  to  the 

the  extent  that  independence  of  action  in  the  very  nature 
of  things  is  advantageous,  i.  e.,  where  there  is  no  inter- 
dependence of  working  relations  and  no  advantage  can  be 
gained  through  subordination  to  a  common  executive, 
though  they  may  be  under  the  same  legislative  control. 

91 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Application  of  General  Principles  to  Functional  Groups 

Before  concrete  appraisal  of  the  existing  organization  for  administra- 
tion may  be  made,  these  general  principles  must  be  applied  to  the  func- 
tional groups.  When  so  applied  the  following  conclusions  may  be  drawn 
with  respect  to  the  question  as  to  whether  central  control  makes  for  ef- 
ficiency : 

1.  There  should  be  central  executive  or  administrative  control 

over  the  functions  of  money-raising  wherever  and  to  the 
extent  that  the  same  revenue-paying  or  money-lending 
constituency  is  to  be  dealt  with 
Thus  it  is  advantageous  for  the  state  to  collect  the  automobile  tax,  whereas 
it  is  advantageous  to  have  the  local  government  collect  the  real  estate  tax. 
In  each  case  one  agency  collects  for  all  political  jurisdictions,  and  renders 
an  accounting.  In  Massachusetts,  a  central  state  bureau  is  maintained  for 
administering  the  law  governing  city,  county  and  town  borrowing,  since 
each  must  deal  in  the  same  market  and  each  gains  an  advantage  from  the 
experience  and  better  facilities  ofifered  by  a  central  agency. 

2.  Central  control  over  employment  and  improvement  of  the  per- 

sonnel of  the  public  service  should  be  established  when- 
ever and  to  whatever  extent  justice  to  a  class  of  em- 
ployees   and    individual    efficiency    may    be    promoted 
through  the  use  of  a  common  agency 
Whatever  the  arrangement  for  executive  control  over  public  service  func- 
tions of  the  state — whether  centralized  or  decentralized — it  is  an  advan- 
tage both  to  the  executive  and  the  public  which  is  served  to  provide  a 
common  agency  for  determining  the  fitness  and  qualification  of  persons 
seeking  employment,  for  providing  common  labor  conditions  affecting  pro- 
motions, transfers,  discipline,  health,  compensation,  sick  leave,  vacations, 
retirement  pensions,  etc. 

3.  The  purchase  and  custody  of  supplies,  equipment  and  prop- 

erties  should   be  centrally   controlled   wherever   and   to 
whatever  extent  better  trading  conditions  can  be  estab- 
lished and  equal  or  better  facilities  for  distribution  and 
use  may  be  obtained 
Generally  speaking,  trade  conditions  may  be  established  better  through 
central  executive  control  than  where  purchases  are  left  to  a  great  number 
and  variety  of  related  institutions  and  agencies.     The  exception  is  where 
the  using  agencies  are  widely  scattered  and  the  market  is  a  nearby  local 
one  (as  in  the  case  of  fresh  vegetables)  ;  or  where  the  transportation  cost 
is  more  than  the  saving  through  better  prices  obtained.     Quite  often, 
however,  the  infrequency,  the  emergency,  the  irregularity  of  demand  are 
such  as  to  put  the  officer  in  charge  of  work  at  a  disadvantage  if  he  must 

92 


THE    GOVERNOR    AND    THE    ADMINISTRATION 


rely  on  a  central  purchasing  agency.  The  same  principle  holds  good  with 
custodianship.  With  respect  to  properties  and  equipment  in  use,  only 
one  treatment  is  possible — the  user  must  also  act  as  custodian.  In  each 
of  these  cases,  however,  it  is  of  advantage  to  have  central  accounting  and 
inspection  control  extend  over  the  entire  jurisdiction  of  the  chief  execu- 
tive. When  there  is  no  chief  executive,  then  the  only  central  control 
practicable  is  through  the  independent  auditor  or  some  staff  agency  of 
the  legislative  body. 

4.  Central  control  over  disbursements  is  advantageous  whether 

operated  under  a  centralized  or  decentralized  system  of 

administration 
There  is  the  same  reason  for  central  control  over  disbursements  as  there 
is  for  central  custodianship  of  funds.  There  is  this  added  advantage,  that 
the  custodian  and  the  persons  making  the  payment  should  have  no  interest 
in  either  the  public  service  functions  or  the  other  proprietary  functions. 
This  does  not  mean  that  the  custodian  and  paymaster  should  be  indepen- 
dent of  the  executive  who  is  held  responsible  for  doing  things.  On  the 
contrary,  assuming  that  there  is  an  independent  auditor,  he  should  not 
be  independent  of  the  executive.  This  is  a  necessary  part  of  proprietary 
functions.  In  case  of  labor  it  is  also  intimately  related  to  management 
of  the  public  service.  There  is  every  reason  for  making  the  treasurer  a 
part  of  a  commonly-controlled  central  executive  organization ;  but  he 
should  be  detached  from  the  public  service  grou[). 

5.  Whether  provision  is  made  for  a  responsible  chief  executive 

over  proprietary  and  service  functions,  or  control  is  to  be 
exercised  through  a  number  of  independent  executives, 
each  service  group  should  be  under  a  common  executive 
head 
There  are  some  groups  which  bear  such  a  close  relation  to  each 
other  that  they  may  not  be  separated  to  advantage.     The  services  or- 
ganized for  miHtary  protection  constitute  such  a  group..    Cooperation 
between  the  different  arms  of  the  service  is  essential  to  efficiency.     It  is 
also  desirable  to  have  the  military  service  under  the  same  chief  executive 
that  is  responsible  for  civil  services,  for  the  reason  that  lack  of  coordina- 
tion may  prove  destructive  to  the  government  itself.     It  is  only  in  case 
of  military  necessity  that  the  war  organization  should  be  placed  in  charge 
of  civil  service  functions  and  in  any  case,  except  under  conditions  of 
revolution  and  overthrow  of  the  existing  government,  it  is  desirable  to 
maintain  a  separate  organization  under  a  common  executive  for  carrying 
on  the  proprietary  functions.     An  extension  of  this  principle  is  one  of 
the  large  questions  nov/  before  the  English  government.     The  same  ques- 
tion is  before  the   federal  government,  and  outside  of  military  circles 
there  are  almost  no  dift'erences  of  opinion. 

93 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

To  any  of  the  public  service  groups,  indicated  above  (p.  90),  the 
same  reasoning  appHes.  There  should  be  coordination  through  group 
executive  control  of  the  public  service  activities  that  have  for  their  pur- 
pose public  education  and  the  promotion  of  art  and  science;  a  consistent, 
effective,  public  health  program  depends  on  such  group  coordination, 
the  interests  of  laborers  v^hich  are  to  be  served  by  agencies  of  the  state 
should  be  coordinated  so  as  to  prevent  conflicting  and  overlapping  juris- 
diction, and  to  promote  efficiency  through  common  consideration  of  a 
group  of  relations,  each  of  Avhich  should  be  supplementary  to  the  other. 
With  respect  to  the  care  and  education  of  the  dependent,  defective  and 
delinquent  classes,  and  the  institutional  care  of  the  sick,  decision  as  to 
whether  there  should  be  a  common  executive  control  or  each  should 
constitute  a  separately  organized  administrative  group  depends  very 
largely  on  whether  there  is  a  responsible  chief  executive  over  all  the  pub- 
lic service  functions  and  a  correlation  may  be  established  and  made  effect- 
ive through  some  kind  of  executive  council  or  cabinet.  There  can  be  no 
doubt  that  there  are  problems  common  to  them  all;  and  that  these  should 
be  considered  before  decision  is  reached  with  respect  to  matters  of  execu- 
tive and  legislative  policy. 

i  6.     In  case  a  system  is  adopted  which  provides  for  a  responsible 

l/Jf^       -    9-     '  executive,  then  the  chief  executive  should  be  provided 

with  the  following  machinery : 

An  executive  officer  or  personnel  for  receiving 
reports,  issuing  orders,  and  handling  the 
routine  work  of  the  chief  executive. 
An  executive  council  or  cabinet  made  up  of 
specialized  vice-governors  or  heads  of  func- 
tionally related  administrative  groups  who 
will  serve  as  "  line '"  advisers. 
"  Staff  "  agencies  so  organized  and  related  to  the 
chief  executive  that  he  may  refer  any  ques- 
tion, for  inquiry  and  report,  to  a  detached 
expert  or  professional  personnel  who  may 
also  be  relied  on  for  preparation  or  review 
of  the  budget  and  other  proposals  which  are 
to  go  before  the  legislature. 

The  "  Governor  "  or  "  Chief  Executive  " 

It  is  a  curious  commentary  on  our  respect  for  logic  that  the  article 
of  the  constitution  which  confers  the  executive  power  upon  the  gov- 
ernor is  followed  by  one  which  deprives  him  of  a  large  part  of  it  by 
':reating  a  number  of  high  executive  officers  elected  by  popular  vote 
and  almost  wholly  independent  of  him  in  the  conduct  of  executive  busi- 

94 


•0-^' 


THE    GOVERNOR    AND    THE   ADMINISTRATION 


ness.  As  Governor  Hughes  remarked  in  his  second  inaugural,  after 
two  years  experience  in  the  office :  "While  the  governor  represents  the 
highest  executive  power  in  the  state,  there  is  frequently  observed  a  pop- 
ular misapprehension  as  to  its  scope.  There  is  a  wide  domain  over  which 
he  has  no  control,  or  slight  control." 

The  fact  is  that  while  the  constitution  provides  for  an  officer  who 
is  called  the  "  governor,"  only  as  a  matter  of  declaration  of  principle 
may  he  be  said  to  be  endowed  with  "  executive  power."  The  first  con- 
stitution provides :  "  The  supreme  executive  power  and  authority  of 
this  state  shall  be  vested  in  a  governor  " ;  subsequent  constitutions  con- 
tain the  declaration  that  ''  exec:itive  power  shall  be  vested  in  the  gov- 
ernor." 

Yet  there  are  several  elected  off'icers  who  exercise  within  their 
prescribed  spheres  most  important  executive  powers.  To  the  comp- 
troller and  the  treasurer  are  confided  powers  with  respect  to  financial 
matters.  The  attorney  general  is  charged  with  duties  appropriate  to  the 
enforcement  of  public  rights  through  legal  machinery.  The  state  engi- 
neer and  surveyor  has  important  powers  with  regard  to  canal  improve- 
ment and  the  only  member  of  the  canal  board  accountable  to  the  governor 
is  the  superintendent  of  public  works  who  has  a  limited  authority. 

Our  constitution  makers  have  certainly  been  guilty  of  gross  inconsist- 
ency. Article  V  is  a  historical  accumulation,  not  a  reasoned  product  of 
administrative  science.  There  is  no  consistent  scheme  for  defining  de- 
partmental limits.  The  powers  and  duties  of  five  important  officers 
dignified  by  constitutional  mention,  the  secretary  of  state,  comptroller, 
treasurer,  attorney  general,  and  engineer  and  surveyor,  are  left  wholly 
undefined.  If  it  be  said  that  such  powers  and  duties  are  clearly  implied 
in  the  names  of  the  oft"icers,  the  obvious  reply  is  that  the  legislature  in 
distributing  public  business  does  not  follow  any  such  implications.  It 
may  be  pertinently  added  that  the  duties  of  the  superintendent  of  prisons, 
whose  functions  are  set  forth  in  great  detail,  are  as  positively  defined  by 
title  as  are  those  of  the  secretary  of  state.  If  the  important  functions 
of  collecting  and  supervising  the  funds  of  the  state  are  .to  be  distributed 
at  will  by  the  legislature,  not  merely  between  the  treasurer  and  the  comp- 
troller, but  among  as  many  boards  and  commissions  as  the  legislature 
sees  fit  to  create,  then  there  is  certainly  no  reason  why  the  duties  of  the 
superintendent  of  public  works  may  not  be  left  with  safety  to  legislative 
action. 

Weighty  as  are  the  objections  against  such  disparity  of  treatment 
in  defining  the  functions  of  the  several  officers,  still  more  weighty  objec- 
tions may  be  brought  against  the  principle  of  demarcation  which  the 
constitution  applies  in  deciding  what  offices  are  worthy  of  constitutional 
mention  and  what  are  to  be  left  to  the  legislature.     Dignity  and  magni- 


95 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

tilde  of  influence  over  the  lives  and  property  of  citizens  have  not  been 
the  criteria  for  distinguishing  constitutional  from  statutory  officers.  It 
will  not  be  seriously  contended  that  the  superintendent  of  prisons  is  of 
more  public  consequence  than  the  commissioner  of  health  or  the  com- 
missioner of  labor. 

It  is  thus  apparent : 

1.  That  the   metes   and   bounds   set  by   the   constitution   to   the 

governor's  executive  power  by  the  creation  of  elective 
officers  are  wholly  fortuitous  and  in  no  way  related  to 
the  simplest  standards  of  business  and  common  sense. 
The  secretary  of  state  whose  duties  are  relatively  unim- 
portant in  most  respects  is  entirely  independent  of  the 
governor;  but  the  superintendent  of  public  works  is 
nominated  and  removed  by  him. 

2.  That  in  the  definition  of  official  duties  the  constitution  fol- 

lows no  consistent  principles,  but  leaves  some  of  the  most 
important  offices  wholly  at  the  mercy  of  the  legislature 
while  narrowly  circumscribing  the  functions  of  other 
offices. 

3.  That   no    principle   has   been    followed    in    determining   what 

offices  should  be  treated  in  the  constitution,  the  legisla- 
ture being  bound  in  some  minor  matters  and  entirely  free 
in  others  of  more  importance. 

4.  That,  whether  considered  in  relation  to  the  organization  of 

the  executive  work  under  the  governor  or  independent 
of  all  other  considerations,  the  situation  requires  treat- 
ment according  to  some  consistent  standards. 

One  hundred  and  thirty-eight  years  of  political  experience  has  de- 
monstrated the  inadequacy  of  mere  declarations  to  make  a  chief  executive. 
The  state  has  never  had  a  chief  executive.  The  only  question  which  can 
be  left  open  when  considering  the  government  historically  is  this :  Do  the 
people  desire  or  need  a  chief  executive — should  there  be  a  single  elected 
officer  who  may  be  held  to  account  of  what  is  done — or  do  the  people 
desire  and  need  to  try  various  other  expedients  for  holding  a  large  num- 
ber of  people  accountable  who  are  neither  dependent  or  independent  and 
concerning  the  result  of  whose  action  there  is  no  way  for  the  electorate 
to  have  an  intelligent  opinion.  Shall  the  state  continue  to  do  business 
with  a  headless,  spineless  institution  whose  moving  impulse  comes  from 
an  external  agency  or  organism  which  seeks  to  exploit  its  activities  for 
its  selfish  ends,  or  shall  the  people  choose  as  their  servant  a  chief  executive 
who  will  be  held  to  account  for  using  the  personnel  and  resources  of  the 
government  for  the  common  good  ? 

96 


THE    GOVERNOR    AND    THE    ADMINISTRATION 


1  he  Present  Organisation  for  Executive  Direction  and  Control 

The  fact  is  that  the  constitution  itself  inhibits  the  development  of  a  i 
responsible  chief  executive.  It  has  set  up  two  independent  heads  of 
Proprietary  Functions — the  secretary  of  state  and  the  treasurer;  it  has 
set  up  three  independent  heads  of  groups  of  public  service  functions ;  it 
has  set  up  one  independent  stafif  agency,  the  attorney  general.  Providing 
no  organization  for  a  chief  executive,  the  constitutional  inhibition  against 
the  expenditure  of  public  moneys  except  pursuant  to  appropriations  has 
done  the  rest.  Acting  within  these  constitutional  powers  the  legislature 
has  also  failed  to  provide  either  organization  or  funds  with  which  the 
governor  might  build  up  staff  agencies,  except  the  civil  service  commis- 
sion, and  the  department  of  efficiency  and  economy — the  first  of  which 
is  made  a  continuous  body — as  it  probably  should  be,  and  the  second  of 
which  was  abolished  on  recommendation  of  a  new  governor  who  came 
into  office  viewing  it  as  a  creature  of  an  opposition  party.  Furthermore, 
the  legislature  has  established  140  different  departmental  officers  and 
commissions  having  administration  duties  with  no  provision  for  coordi- 
nation and  with  little  possibility  of  executive  direction  and  control.  (See 
Chart  V,  Page  98.) 

Without  "  staff "  or  "  line  "  advisers  the  governor  is  required  to 
deal  with  or  act  upon  the  independent  requests  of  all  these  administrative 
heads  and  groups  as  an  observer  from  a  far-off'  mountain  top,  or  if  he  is 
visited  by  one  who  asks  for  his  official  sanction,  he  must  decide  or  refuse 
without  having  the  matter  considered  and  discussed  by  the  various  other 
officers  whose  interests  may  be  aft'ected. 

The  Tenure  of  the  Governor 

New  York,  in  her  first  constitution,  drafted  by  the  convention  of  1777, 
granted  the  governor  a  three-year  term,  instead  of  the  twelve-month 
term  established  in  many  of  the  other  states.  When  the  convention  of 
1821  overthrew  the  predominance  of  the  landed  class  by  sweeping  away 
the  freehold  qualifications  for  voters  for  senators  and  reduced  the  term 
of  the  senators  to  two  years,  it  also  reduced  the  term  of  the  governor 
to  the  same  period.  This  provision  was  incorporated  in  the  constitution 
of  1894.  Meanwhile  other  states  have  moved  in  the  direction  of  longer 
terms,  all  of  the  original  thirteen,  except  Massachusetts,  having  aban- 
doned the  annual  election.  At  the  present  time,  of  the  original  thirteen 
states,  six  (Connecticut,  Georgia,  New  Hampshire,  New  York,  Rhode 
Island  and  South  Carolina)  limit  the  term  of  the  governor  to  two  years; 
one,  Massachusetts,  retains  the  annual  election ;  one.  New  Jersey,  fixes 
the  term  at  three  years,  and  the  remaining  five  have  extended  it  to  four 
years. 

An   examination   of   the   constitutions   of   all    the   states   shows   that 

97 


-SHOWING  THE  LACK  OF  ANY  ORGANIZATION  IN  THE  EXECUTIVE 
BRANCH  OF  THE  GOVERNMENT  FOR  COORDINATING  THE  ONE 
HUNDRED  AND  FORTY  DIFFERENT  DEPARTMENTS,  OFFICES 
BOARDS  AND  COMMISSIONS  HAVING  ADMINISTRATIVE  FUNC- 
TIONS,   EXCEPT   THROUGH   THE    GOVERNOR. 


KEY  TO  CHART  V.— SHOWING  LACK  OF  CO-ORDINATION  OF  VARIOUS  DEPART- 
MENTS, OFFICES,  BOARDS  AND  COMMISSIONS,  THE  NUMBERS  REFERRING 
TO  CHART  ON  OPPOSITE  PAGE. 


1 — Commn.  Fed.  Legis.  Alien  Insane 

2 — Commn.     Invest.     Housing     Cond.     Cities 

2nd  01. 
3 — Commn.  Prom.  Uniform.  Legis.  U.  S. 
4 — Commn.  Invest.  Prov.  Mentally  Def. 
5 — Commn.  Revise  and  Codify  Tax  Laws 
6 — Commissioner  Index  Session  Laws 
7 — -N.  Y.  State  Factory  Investigat.  Commn. 
8 — Bd.  Statutory  Consolidation 
9 — Commn.     Invest.     Pt.     Conditions     N.    Y. 

Harbor 
10 — Bd.  of  Estimate 
11 — N.  Y.  Bridge  and  Tunnel  Commn. 
12— State  Printing  Bd. 
13 — State  Bd.  Canvassers 
14 — State  Bd.  Equalization 
15 — State  Bd.  Classification 
16 — Bd.  Retirement  State  Hosp.  Employees 
17— Canal  Bd. 
18— Trust.  Public  Buildings 
19 — Dept.  Public  Buildings 
20 — Dept.  Efficiency  and  Economy 
21 — Banking  Dept. 
22 — Insurance  Dept. 
23 — Dept.  Excise 
24— Dept.  Health 
25— Health  Officer  Port  N.  Y. 
26 — Dept.  Labor 
27 — Dept.  State  Fire  Marshal 
28 — Dept.  Agriculture 
29 — Prison  Dept. 
30 — Dept.  Architecture 
31— Dept.  Public  Works 
32— Dept.  Highways 
33 — State  Probation  Commn. 
34— State  Bd.  Port  Wardens 
35— Bd.  Trust.  State  Sch.  Agr.   (Morrisville) 
36— State  Bd.  Public  Char. 
37 — Bd.  Control  State  Sch.  Agr.  and  Dom.  Sc. 

(Delhi) 
38 — Bd.   Mgrs.  Cust.  Asy.  F'blem'ded  Women 

(Newark) 
39 — Bd.  Mgrs.  Letchworth  Village  (Thiells) 
40 — Bd.  Trust.  Soldiers  and  Sailors  Home  (Bath) 
41 — Bd.    Mgrs.    Women's    Relief    Corps    Home 

(Oxford) 
42 — Bd.  Parole  State  Prisons 
43— Bd.  Mgrs.  Utica  State  Hosp. 
44 — Bd.  Mgrs.  Willard  State  Hosp. 
45 — Bd.  Mgrs.  Hudson  River  State  Hosp. 
46 — Bd.  Mgrs.  Middletown  State  Homeo.  Hosp. 
47— Bd.  Mgrs.  Buffalo  State  Hosp. 
48 — Bd.  Mgrs.  Binghamton  State  Hosp. 
49 — Bd.  Mgrs.  St.  Lawrence  State  Hosp. 
50 — Bd.  Mgrs.  Rochester  State  Hosp. 
51 — Bd.    Mgrs.    Gowanda   State    Homeopathic 

Hosp. 
52 — Bd.  Mgrs.  Mohansic  State  Hosp. 
53 — Bd.  Mgrs.  Kings  Park  State  Hosp. 
54 — Bd.  Mgrs.  Long  Island  State  Hosp. 
55 — Bd.  Mgrs.  Manhattan  State  Hosp. 
56 — Bd.  Mgrs.  Central  Islip  State  Hosp. 
57 — Bd.  Trust.  Washington  H'dq'trs  (Newburgh) 
58 — State  Fair  Commn. 
59 — Commn.  Fire  Island  State  Pk. 
60 — Commn.  Saratoga  Springs  State  Reserv. 
61 — State  Hosp.  Commn. 
62 — Commn.  Watkins  Glen  Reserv. 
63 — Commn.  Palisades  Interstate  Pk. 
-64 — State  Civil  Serv.  Commn. 
65 — Public  Service  Commn.  (1st  Dist.) 
66 — Public  Service  Commn.  (2nd  Dist.) 
67 — Workmen's  Compensation  Commn. 
68 — Conservation  Commn. 
69 — State  Commn.  Prisons 
70 — Newtown  Battlefield  Commn. 
71 — Bd.    Mgrs.    Indust.    Farm    Colony    (Green 

Haven) 


72— Bd.    Mgrs.    Train.    Sch.    Boys    (Yorktown 
Hgts.) 

73 — State  Supt.  Weights  and  Measures 

74 — Irish  Brigades  Monument  Commn. 

75 — Curtis  Monument  Commn. 

76— Treaty  Ghent  Commn. 

77— Panama-Pacific  Exp.  Commn. 

78 — Perry  Victory  Centennial  Commn. 

79 — Commn.  State  Reserv.  (Niagara) 

80 — Bd.    Mgrs.    Hosp.    Treat.    Incip.    Tubercu- 
losis 

81 — Bd.  Mgrs.  Thomas  Indian  Sch.  (Iroquois) 

82 — Fiscal  Supervisor  State  Char. 

83 — Dir.  Psychiatric  Inst. 

[Bd.  Mgrs.  East  N.  Y.  Reformatory  (Napa- 


84 


3h) 


IBd.  Mgrs.  Reformatory  (Elmira) 
85 — Bd.  Mgrs.  Agr.  Indust.  School  (Industry) 
86 — Bd.     Mgrs.     West.     Home    Relief    Women 

(Albion) 
87 — Bd.  Mgrs.  Reformatory  Women  (Bedford) 
88— Bd.  Mgrs.  Training  Sch.  Girls  (Hudson) 
89— Mawenawasigh  Chap.  D.  A.  R. 
90 — Mt.  McGregor  Memorial  Asso. 
91 — Johnstown  Slemorial  Soc. 
92 — Bd.  Mgrs.  Reformatory  Misdemeanants 
93 — Bd.  Mgrs.  Rome  Custodial  Asylum 
94 — Bd.  Mgrs.  Inst.  Feebleminded  Children 
95— Bd.  Mgrs.  Craig  Col.  Epileptics  (Sonyea) 
96— Bd.  Mgrs.  Hosp.  Care  Crippled  Children 
97— Bd.  Mgrs.  School  Blind  (Batavia) 
98 — Bronx  Parkway  Commn. 
99 — State  Supt.  Elections 

100— Bd.  Trust.  State  Agr.  Exp.  Sta.  (L.  I.) 

101 — Battleship  "New  York"  Silver  Serv.  Commn 

102 — Am.  Scenic  and  Hist.  Preserv.  Soc. 

103 — Saratoga  Monument 

104 — German-American  Alliance 

105 — Comm.  D.  A.  R.,  N.  Y.  State 

106— Bd.  Mgrs.  Soc.  Reform.  Juv.  Del.  N.  Y.  C. 
(Randall's  Island) 

107 — Voting  Machine  Commn. 

108 — State  Racing  Commn. 

109— N.  Y.  State  Athletic  Commn. 

110— Commn.  Blind 

111 — Ketchum  Memorial  Commn. 

112— Bd.  Regents  (Ed.  Dept.) 

113 — Bd.  Trust.  Inst.  Study  Malig.  Diseases 

114 — State  Bd.  Law  Examiners 

115 — Harbor  Masters 

116 — Spcl.  Exam,  and  Appraiser  Canal  Lands 

117 — Bd.  Embalming  Examiners 

118— Bd.    Exam.    F'blem'ded,    Criminals    Other 
Def. 

119 — Bd.  Trust.  Schuyler  Mansion 

120— Bd.  Trust.  State  School  Agr.  (L.  I.) 

121 — Bd.  Trust.  State  Coll.  Forestry  (Syracuse) 

122— Advis.  Bd.  Prom.  Agr. 

12.3 — Commissioners  Canal  Fund 

124 — Commissioners  Land  Office 

125 — Salary  Classification  Commn. 

126— N.  Y.  State  Hist.  Asso. 

127— Bd.  Trust.  Schoharie  State  Sch.  Agr. 

128 — Bd.  Gov.  State  Nautical  School 

129 — State  Bd.  Geographic  Names 

130— N.    Y.    Mon.    Commn.    Gettysb'g,    Chatt. 
Antietam 

131— 25th  N.  Y.  Vol.  Cav.  Mon.  Comm. 

132 — Miscellaneous  Reporter 

133 — State  Reporter 

134 — Supreme  Court  Reporter 

135— Bd.  Claims 

136 — Bd.  Tax  Commissioners 

137— Militia  (Maj.  Gen.) 

138 — Building  Improvement  Commn. 

139 — Commn.  Sites,  Grounds,  Buildings 

140 — Joint  Pur.  Commn.  State  Char. 


99 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

about  half  of  them  provide  for  the  two  year  term  and  about  half  or 
a  slight  majority  for  the  four  year  term.  A  search  for  the  factors 
which  led  to  the  choice  of  two  or  four  years  in  the  several  states  reveals 
no  consistent  explanation.  It  cannot  be  said  that  those  states  which 
have  been  making  the  most  radical  experiment  in  direct  democracy  are 
uniformly  attached  to  the  shorter  term.  On  the  contrary,  Oregon,  Wash- 
ington, California,  Oklahoma,  Nevada  and  Arizona  appear  among  those 
that  have  adopted  the  four  year  term.  Neither  can  it  be  said  that  all  of 
the  recent  conventions  have  adopted  the  four  year  term  in  spite  of  the 
tendency  in  that  direction,  for  Ohio  and  Michigan  retain  the  two  year 
period.  Yet  it  is  worthy  of  note  that  Oklahoma,  Arizona  and  New 
Mexico,  in  making  entirely  new  organic  laws,  adopted  the  longer  period. 
In  view  of  these  facts,  it  appears  that  in  the  main  the  tendency  is  in 
the  direction  of  the  longer  term,  that  some  states  which  have  tried  the 
shorter  term  are  abandoning  it,  that  neither  geographical  or  political 
reasons  account  for  the  choice  of  one  or  the  other,  that  the  most  radical 
democracies  do  not  deem  the  short  term  a  necessary  part  of  their  system. 
From  the  point  of  view  of  responsibility,  however,  the  term  of 
four  years  has  been  more  satisfactory.  From  the  point  of  view  of  re- 
sponsibility and  efficiency,  the  two  year  term  is  without  doubt  subject  to 
serious  objections.  The  governor  is  hardly  installed  before  he  has  to 
begin  to  think  of  the  next  election,  the  campaign  for  which  begins  within 
at  least  sixteen  or  eighteen  months  after  his  inauguration.  By  the  time 
he  has  disposed  of  the  inevitable  patronage,  the  fight  for  renomination 
has  begun.  Serious  and  prolonged  study  of  the  problems  of  administra- 
tion is  impossible.  To  hold  the  governor  to  account  for  efficient  admin- 
istration under  such  circumstances  is  as  unjust  as  it  is  unjustifiable,  par- 
ticularly when  the  chaos  in  the  state  administrative  organization  is  borne 
in  mind. 

The  Power  of  Appointment  and  Removal 

As  has  been  pointed  out  in  other  connections,  no  consistent  prin- 
ciples have  been  applied  in  the  determination  of  what  officers  should 
be  made  independent  of  the  governor  through  popular  election  and  what 
officers  should  be  made  subordinate  to  him  through  the  exercise  of  the 
power  of  appointment.  For  instance,  the  state  engineer  and  surveyor,  an 
officer  charged  wnth  duties  which  involve  those  of  officers  appointed  by 
the  governor,  is  made  elective  by  the  constitution,  and  an  equally  tech- 
nical position,  for  which  no  qualifications  are  established,  that  of  super- 
intendent of  public  works,  is  made  appointive.  The  governor's  adviser 
on  legal  matters  of  great  moment  who  is  responsible  in  a  large  measure  for 
the  enforcement  of  the  law,  the  attorney  general,  is  elected,  while  the 
superintendent  of  prisons  is  an  appointive  officer. 

100 


THE    GOVERNOR    AND    THE    AJSMIWISTRJXION 


After  having  decided  that  certain  offices  shall  be  elective,  the  law- 
makers have  not  followed  any  consistent  principles  in  selecting  the 
methods  of  appointment,  except  in  the  case  of  the  two  important  officers 
mentioned  in  the  constitution,  the  superintendents  of  public  works  and 
of  prisons,  who  are  appointed  by  the  governor  by  and  with  the  advice 
and  consent  of  the  senate.  The  offices  created  by  statute  are  filled  by 
a  variety  of  methods,  so  large  that  it  has  surely  exhausted  the  inventive 
genius  of  our  legislators.  Whatever  may  have  been  the  considerations 
brought  to  bear  in  determining  the  mode  of  appointment  to  any  partic- 
ular office  or  group  of  offices,  it  is  clear  that  the  standard  of  responsi- 
bility and  efficiency  has  not  been  the  dominant  motive.  At  all  events 
the  debates  and  records  available  do  not  show  that  any  effort  has  been 
made  to  discover  and  apply  such  a  standard  in  providing  modes  of 
appointment. 

When  tried  by  canons  of  consistency  and  responsibility,  the  methods 
of  removal  provided  by  the  constitution  and  statutes  are  found  to  be 
confusing  beyond  measure.  Article  V  of  the  Constitution  authorizes  the 
removal  of  two  officers  by  the  governor  and  the  suspension  of  a  third. 
The  superintendent  of  public  works  "may  be  suspended  or  removed  from 
office  by  the  governor,  whenever,  in  his  judgment,  the  public  interest 
shall  so  require."  The  superintendent  of  prisons  may  be  removed  by 
the  governor  "for  cause  at  any  time."  In  the  case  of  the  removal  of 
the  former  officer,  the  governor  must  file  with  the  secretary  of  state 
a  statement  of  the  cause  of  such  removal  and  shall  report  such  removal 
and  the  cause  thereof  to  the  legislature  at  its  next  session.  In  the  case 
of  the  removal  of  a  superintendent  of  prisons,  however,  the  governor 
must  give  the  officer  a  copy  of  the  charges  against  him  and  an  oppor- 
tunity to  be  heard  in  his  own  defense.  It  is  difficult  to  imagine  the  con- 
siderations which  require  that  a  superintendent  of  prisons  about  to  be 
removed  should  be  heard  in  his  own  defense,  while  a  superintendent  of 
public  works  in  a  similar  position  should  not  be  given  that  opportunity. 

In  the  case  of  the  officers  made  elective  by  the  constitution,  the 
principle  of  complete  independence  of  the  governor  is  maintained,  except 
in  one  instance.  The  state  treasurer  may  be  suspended  by  the  governor, 
but  only  during  the  recess  of  the  legislature  and  until  thirty  days  after 
the  commencement  of  the  next  session.  The  governor  may  exercise  this 
high  power  whenever  it  appears  to  him  that  the  treasurer  has  "in  any 
particular,  violated  his  duty."  If  the  governor  suspends  a  treasurer  under 
such  circumstances,  he  may  appoint  some  person  to  discharge  the  duties 
of  the  office  during  the  suspension  of  the  treasurer.  It  is  difficult  to  see 
what  standards  of  responsibility  and  efficiency  place  the  treasurer  under 
such  partial  control  by  the  governor  and  left  the  other  high  elective  offi- 
cers entirely  exempt.     Surely  a  comptroller,  or  state  engineer  and  sur- 

101 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 


veyor,  or  attorney  general  who  violated  his  duties  could  do  about  as 
much  harm  to  the  public  interest  as  a  treasurer.  Worse  injuries  to  the 
state  are  conceivable  than  the  loss  of  money  or  a  confusion  of  accounts 
in  the  treasury  department. 

In  the  case  of  offices  created  by  statute,  there  is  also  great  variation 
in  the  methods  of  removal.  Perhaps  the  principle  most  consistently 
applied  is  that  the  consent  of  the  senate  shall  be  necessary  to  the  removal 
by  the  governor  of  appointive  officers  of  high  rank.  The  origin  of  this 
principle  is  clear :  fear  of  concentrating  too  much  power  in  the  hands  of 
the  executive  and  the  reluctance  with  which  party  organizations  in 
the  senate  yield  any  control  over  patronage. 

Nevertheless,  the  principle  is  not  carried  out  in  our  state  government 
with  logical  exactness.  Certain  high  officers,  constitutional  and  statutory, 
the  superintendents  of  public  works  and  of  prisons  and  public  service 
commissioners,  for  instance,  are  removable  by  the  governor  without  the 
consent  of  the  senate,  but  in  each  case  different  procedures  and  limita- 
tions prevail.  The  historical  reasons  for  the  absence  of  the  requirement 
of  senatorial  approval  in  the  case  of  these  three  officers  are  themselves 
an  eloquent  testimony  to  the  principle  of  responsibility  and  efficiency. 
The  first  two  offices  were  created  by  constitutional  action  so  that  party 
considerations  could  not  enter  so  fully  into  their  formation,  and  the 
public  service  commissions  were  established  under  the  recommendation 
of  Governor  Hughes,  who  was  determined  in  his  belief  that  responsi- 
bility for  the  work  of  these  commissions  could  not  be  fixed  unless  the 
practice  of  requiring  senatorial  consent  to  removals  was  abandoned. 

Indeed,  there  is  ample  justification  for  the  view  that  the  desire  of 
party  organizations  to  control  patronage,  rather  than  fear  of  the  execu- 
tive or  interest  in  responsible  government,  has  been  the  dominant  motive 
in  establishing  senatorial  authority  over  removals.  Perhaps  this  is  most 
clearly  brought  out  in  the  administrative  history  of  the  federal  gov- 
ernment. The  constitution  of  the  United  States,  which  requires  the 
consent  of  the  senate  to  the  appointment  of  certain  officers,  is  silent 
as  to  the  process  of  removal,  except  by  impeachment.  Recognizing  that 
it  was  not  intended  to  employ  this  cumbersome  procedure  in  the  removal 
of  minor  officers,  the  very  first  congress  under  the  constitution,  after 
a  long  and  informing  debate,  assumed  that  the  removal  power  could  be 
exercised  by  the  president  alone  in  the  case  of  offices  then  under  dis- 
cussion. In  spite  of  discussions  of  the  subject  from  time  to  time,  this 
legislative  decision  on  the  constitutional  point  remained  undisturbed 
until  1867,  when  the  Republican  leaders  in  congress  broke  with  Presi- 
dent Johnson  and  determined  to  destroy  his  authority  by  passing  the 
Tenure  of  Office  Act,  which  required  the  consent  of  the  senate  for  the 
removal  of  officers  by  the  executive.     The  provision  caused  great  fric- 

102 


THE    GOVERNOR    AND    THE    ADMINISTRATION 


tion,  and  in  Grant's  administration  (1869)  it  was  modified.  Finally,  in 
1886,  the  law  was  swept  away  entirely,  experience  under  the  act  clearly 
demonstrating  its  evil  efifects  upon  efificient  administration  and  party 
responsibility. 

The  fear  of  highly  centralized  power  and  the  desire  of  parties  to 
control  patronage  have  likewise  been  responsible  for  attempts  to  fix 
the  terms  of  many  high  officers,  but  here  also  we  find  the  same  confu- 
sion and  absence  of  principle  as  in  other  branches  of  administrative 
law.  The  term  of  the  superintendent  of  public  works,  for  example,  is 
merely  to  the  end  of  the  term  of  the  governor  by  whom  he  is  nominated 
and  that  of  the  superintendent  of  prisons  is  for  five  years  unless  sooner 
removed.  The  term  of  the  civil  service  commission  is  six  years,  that 
of  the  superintendent  of  insurance,  three  years,  that  of  the  health  officer 
of  the  port,  four  years,  and  so  on.  It  would  baffle  the  skill  of  the  best 
casuist  to  discover  any  reason  for  such  differences  in  terms. 

Of  course,  it  is  commonly  recognized  that  those  officers  who  are 
required  to  have  technical  and  professional  skill  should  enjoy  longer 
fixed  terms  than  those  whose  functions  are  purely  political.  Indeed, 
organizations  representing  the  various  professions,  knowing  the  relation 
between  permanence  and  efficiency  in  private  business,  have  sought  to 
establish  it  in  public  business  by  recommending  long  terms  for  tech- 
nical officers.  Such  recommendations,  however,  overlook  two  funda- 
mental facts,  namely,  that  no  business  corporation,  except  in  rare  cases, 
would  for  a  moment  agree  to  keep  a  technical  expert  for  a  term  of  ten 
years,  no  matter  how  inefficient  he  might  prove  after  a  trial  or  what 
impairment  of  faculties  might  set  in  within  six  months,  and  that  the 
technical  experts  who  have  rendered  the  most  acceptable  service  to  the 
federal  government  are  not  protected  by  long  terms  of  service  requiring 
an  extraordinary  process  for  removal.  This  should  lead  us  to  inquire 
whether  the  highlv  desirable  permanence  of  tenure  for  technical  experts 
cannot  be  secured  bv  some  other  means  than  a  fixed  term  guarded  against 
removal,  which  fails  to  protect  the  public  against  an  evil  of  equal  mag- 
nitude, the  long  continuance  of  inefficient  persons  in  office. 

Such  an  inquiry  reveals  at  the  outset  the  fact  that  we  have  attempted 
to  secure  responsible  and  efficient  government  without  utilizing  the  means 
which  are  known  to  be  effective  for  locating  and  enforcing  responsi- 
bility, and  have  adopted  methods  for  obtaining  efficiency  which  are 
repudiated  in  institutions,  both  public  and  private,  where  efficiency  ob- 
tains. We  have  sacrificed,  perhaps  unwittingly,  honest  and  efficient 
government  to  our  fear  of  vesting  power  in  the  hands  of  our  public 
officers.  No  business,  public  as  well  as  private,  can  be  successful  if 
those  who  are  in  charge  of  it  are  not  given  powers  commensurate  with 
their  responsibilities.    It  may  be  that  political  expediency  makes  it  desir- 

103 


CONSTITUTION   AND    GOVERNMENT   OP    THE    STATE 

able  to  create  such  a  confusion  of  offices,  terms  an<l  authorities  as  to 
prevent  any  person  or  grouj)  from  doinj^  much  harm  (except  when  a 
party  orpjanization  controls  all  of  them  iniofficiallyj.  If  so,  then  the 
quest  for  honesty  and  efficiency  all  through  the  government  is  futile. 
I^fTiciency  (lej»en(Is  upon  responsiveness  an<l  resj)onsil)ility  and  these 
depend  upon  the  jiosscssic)!!  of  adequate  authority  with  means  ada])l(d  to 
its  effective  exercise. 

Prfccts  ui  / >rf>iirt))ir>ital  < )r(/aincatwn 

The  forejjoiiifj  is  a  general  statement  setting  forth  the  basis  for  con- 
sidering what  defects  there  are  in  the  organization  of  the  slate  govern- 
ment ff)r  ]>urposes  of  administration  an<l  an  aj)praisal  of  provisions  for 
the  chief  executive.  The  part  of  this  repf)rt  which  follows  deals  with 
the  organization  of  the  administrative  dejjartments,  commissions  and 
offices,  and  the  conclusions  drawn  in  nearly  every  ca.se  would  be  equally 
:ipj)licable  whatever  be  the  overhead  or  central  executive  machinery  oi 
control.  In  fact,  if  there  were  nf>  prf)visioji  for  a  single  chief  executive, 
if  the  gf)vernor  were  only  a  ])art  of  the  legislature  and  each  head  of  de- 
partment or  t)ther  administrative  agency  were  rerjuired  to  deal  directly 
with  the  legislature,  the  organization  would  be  defective  in  nearly  every 
particular  noted  below. 


104 


ASISTH 
rkiKiAk^      AND    OTHh 


?   the  a< 


a. 


2.     Cootrart: 

.V     F'ur 


-i         F'r.,  !    ili-ir*i-iiti.in  fjf 


Present  Agem 
in? 


105 


;kbu  iksc  to  lic 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Comptroller 

Tax  department 

Department  of  excise 

Commissioners  of  the  land  office 

Conservation  department 

Sinking  fund  commission 

Canal  fund  commission 

Organizations  for  care  and  maintenance 

Central  purchasing  agencies 

Civil  service  commission 

Department  of  elections 

Generally  speaking,  there  is  a  fairly  clear  recognition  of  the  proprie- 
tary as  distinct  from  the  public  service  functions  in  the  organization  of 
all  these.  The  exceptions  are  noted  in  the  discussion  which  follows, 
and  in  the  chapter  dealing  with  the  comptroller  whose  office  does  not 
belong  in  the  group  for  the  reasons  already  discussed,  viz. :  that  the 
primary  function  of  the  comptroller,  as  independent  auditor,  makes  it 
incompatible  for  him  to  administer  funds  and  properties  and  to  carry 
on  transactions  and  assume  responsibility  for  conditions  and  results  that 
are  to  be  made  the  subject  of  report  by  him  to  the  "  representative  " 
body  and  to  the  "  citizenship  "  of  the  state  whose  property  is  involved. 
Eliminating,  therefore,  the  office  of  the  comptroller  (the  subject  treated 
in  Chapter  VIII),  the  offices  administering  functions  within  the  pro- 
prietary group  and  the  defects  of  organization  are  taken  up  in  the  order 
listed. 

Need  for  Correlation  of  Official  Action  and  Responsibility  Involved  in 
the  Handling  of  Proprietary  Activities 

Before  coming  directly  to  the  consideration  of  the  organization  for 
carrying  on  the  proprietary  relations  of  the  state,  it  is  of  interest  to 
observe  that  in  England,  France  and  Germany,  and  other  great  govern- 
ments in  which  provision  is  made  for  the  location  and  enforcement  of 
"  executive  responsibility,"  these  functions  are  in  general  grouped  to- 
gether as  a  department  of  treasury,  with  varying  exceptions,  such  as  the 
administration  of  rules  and  regulations  governing  employment — civil 
service  provisions,  etc.  In  England,  for  years,  not  only  the  great  funding 
and  trading  relations  were  carried  on  and  controlled  from  the  treasury, 
but  so  were  the  rules,  regulations  and  conditions  governing  civil  service. 
The  English  civil  service  commission  is  largely  a  legislative  and  judi- 
cial body,  rather  than  an  administrator  of  rules  governing  transfers, 
promotions,  salary  increases,  etc.  In  all  countries  where  a  cabinet 
system  exists,  the  budget  proposals  are  prepared  in  the  central  depart- 
ment having  charge  of  the  finances  and  the  minister  over  the  treasury 

106 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


is  not  infrequently  the  one  to  represent  the  executive  in  submitting  and 
defending  requests  for  appropriations,  as  well  as  the  budget  before 
parliament,  it  may  be  noted,  also,  that  it  is  on  account  of  the  necessary 
detachment  of  the  executive  and  administrative  officers  handling  these 
matters  of  finance  and  control  over  the  proprietorship  from  all  persons 
who  are  the  heads  of  service  departments  that  the  prime  minister  or 
chief  executive  often  takes  the  treasury  portfolio  so  that  he  may  be  the 
leader  of  the  group.  For  him  to  take  the  executive  leadership  of  any 
of  the  departments  which  exist  to  serve  the  public,  would  necessarily 
be  to  throw  in  his  lot  with  officers  who  are  the  promoting  spirits  of  gov- 
ernment, as  distinguished  from  those  who  must  find  money,  men,  and 
material  with  which  to  carry  on  the  enterprise.  Taking  the  portfolio 
of  the  treasury  puts  the  prime  minister  in  a  position  to  consider  each 
proposal  coming  from  a  public  service  department  in  its  perspective. 
When  so  organized,  the  central  stafif  agencies  of  the  government,  which 
are  created  to  keep  the  chief  executive  informed,  are  not  infrequently 
a  part  of  this  department.  For  cogent  reasons,  however,  they  may  be 
quite  disassociated,  and  the  proprietary  functions  may  be  carried  on 
under  a  head  to  whom  the  central  stafT  is  not  answerable. 

Technical  Advantages  of  Grouping 

Aside  from  the  better  correlation  of  interrelated  functions  by  group- 
ing the  financial  and  other  proprietary  functions,  there  is  an  advantage 
which  comes  from  having  a  single  "  political  "  head — a  vice-governor, 
under  whom  all  these  activities  are  carried  on.  This  makes  possible 
using  the  "  political  "  head  to  cooperate  with  the  chief  executive  in  making 
effective  his  leadership.  What  is  quite  important,  it  makes  possible  the 
development  and  retention  of  highly  "  technical "  officers  to  care  for 
the  diverse  operations  having  to  do  with  budget-making,  financial  admin- 
istration, procedures,  and  custodianship. 

While  it  is  readily  accounted  for  historically,  there  is  nothing  in  the 
annals  of  human  affairs  that  is  more  unsound  than  the  present  organiza- 
tion of  the  state's  business  relations  and  activities.  There  is  in  it  not  a 
commendatory  feature  when  considered  from  the  viewpoint  of  require- 
ments for  "  responsible  "  administration.  The  old  saying  that  what  is 
everybody's  business  is  nobody's,  would  have  ample  justification  if  its  sole 
use  had  been  to  characterize  the  constitutional  and  legal  provisions  for  the 
management  of  the  estate  of  that  corporation  which  now  spends  upwards 
of  $50,000,000  a  year,  and  which  is  possessed  of  properties  of  ten  times 
this  value — known  as  the  government  of  the  state  of  New  York.  Essen- 
tial defects  in  this  part  of  the  organization  are  responsible  largely  for  the 
high  cost  of  government — defects  which  will  never  be  overcome  so  long 
as  the  technical  requirements  of  proprietary  management  are  lost  sight 

107 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

of  and  the  business  of  the  state  is  left  to  a  group  of  "  poHtical  "  tyros, 
each  of  whom  may  act  independently  of  any  central  executive  who  may 
be  made  "  responsible." 

Secretary  of  State 

The  name  secretary  of  state  has  not  here  or  in  any  other  place 
in  the  world,  the  significance  given  by  the  federal  government.  In 
England,  the  term  has  no  significance  when  standing  alone.  In  colonial 
organization,  the  secretary  performed  the  function  largely  of  secretary 
to  the  governor.  In  early  days  in  New  York,  he  represented  the  pro- 
prietorship. Since  the  independent  state  government  was  established,  the 
office  has  had  a  diminishing  significance.  Unless  the  present  officer  is  re- 
stored to  the  position  of  secretary  to  the  governor  and  made  his  appointee, 
removable  at  will,  the  only  excuse  for  retaining  the  office  as  a  separate 
department,  would  be  to  make  the  secretary  the  head  of  the  proprietary 
group.  The  present  working  relation  of  the  office  of  secretary  of  state 
has  about  the  same  significance  and  relative  importance  as  the  vermiform 
appendix  in  the  human  body. 

The  constitution  of  New  York  provides  that  there  shall  be  a  secre- 
tary of  state  chosen  at  a  general  election  at  the  times  and  places  of 
electing  the  governor,  but  it  does  not  create  a  department  of  state  and 
define  its  functions  in  general  or  in  particular.  The  duties  of  the  sec- 
retary of  state  as  they  have  been  evolved  by  statute  law  are  these: 

1.  He  has  custodv  of  the  state  archives  and  the  great  seal  of  the 

state. 

2.  Superintends  the  printing  and  distribution  of  the  session  laws. 

3.  Issues  patents  for  lands  and  notices  for  elections. 

4.  Records  commissions  and  pardons  issued  by  the  governor. 

5.  Has    custody    of    certificates    of    incorporation    of    companies 

formed  under  general  laws,  except  banking  and  insur- 
ance companies. 

6.  Reports   annually   to    the    legislature    the    statistics    of    crime 

received  from  the  several  counties  and  upon  such  other 
subjects  as  may  be  required  by  law  or  by  resolution  of 
either  branch  of  the  legislature. 

7.  Compiles  the  annual  legislative  manual. 

8.  Registers  and  licenses  owners  and  operators  of  motor  vehicles. 

9.  Licenses  peddlers. 

10.     Administers  oaths  of  office  to  members  of  the  legislature  and 
other  state  officers. 


108 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


In  addition  to  discharging  his  regular  departmental  duties,  the  secre- 
tary of  state  serves  in  an  ex-officio  capacity  as: 

1.  Commissioner  of  the  land  office. 

2.  Commissioner  of  canal  fund. 

3.  Member  of  the  canal  board. 

4.  Member  of  the  state  board  of  canvassers. 

5.  Trustee  of  Union  College. 

6.  Member  of  the  state  board  of  equalization  of  assessments. 

7.  Member  of  the  state  printing  board. 

8.  One  of  the  designators  of  the  state  paper. 

The  details  of  organization  of  the  existing  department  of  state  will 
be  found  on  pages  31  to  43  of  the  descriptive  report  on  the  organization 
and  function  of  the  state  government. 

The  Treasurer 

The  state  treasurer  is  an  independently  elected,  constitutionally  desig- 
nated, officer  chosen  for  a  term  of  two  years  at  the  times  and  places  of 
electing  the  governor  and  lieutenant-governor.  The  treasurer  is  the 
custodian  of  all  monies  paid  into  the  state  treasury  and  also  custodian 
of  other  special  and  trust  funds,  such  as  the  insurance  fund  and  special 
departmental  funds. 

The  treasurer  is  ex-officio : 

1.  Commissioner  of  land  office. 

2.  Commissioner  of  canal  fund. 

3.  Member  of  the  canal  board. 

4.  Member  of  the  state  board  of  canvassers. 

5.  Trustee  of  Union  College. 

6.  Member  of  the  state  board  of  equalization  of  assessments. 

7.  One  of  the  officers  empowered  to  designate  the  state  paper. 

The  details  of  the  organization  of  the  office  of  treasurer  with  a 
description  of  the  work  of  each  employee  of  the  department  are  to  be 
found  on  pages  60-62  of  the  report  on  the  organization  and  functions 
of  the  state  government. 

Historically  the  treasurer  occupied  a  much  more  important  position 
in  corporate  organizations,  both  public  and  private,  than  he  does  to-day. 
With  the  development  of  an  independent  auditor  or  comptroller  and  the 
establishment  of  a  system  of  credit  depositories  for  funds,  the  treasurj' 
is  little  more  than  a  specialized  bookkeeping  office.  In  so  far  as  it  handles 
money,  this  is  done  by  employees  who  correspond  to  receiving  and  paying 
tellers.  Either  the  treasurer  should  be  given  executive  duties  which 
correspond  roughly  to  the  headship  of  a  department  covering  every 
phase  of  administration  of  the  proprietorship  which  is  to  be  centrally 

109 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

controlled,  or  he  should  be  reduced  to  the  position  of  a  "  technical  "  head 
of  a  treasury  bureau  in  a  proprietary  branch  of  the  service. 

The  theory  of  checks  and  balances  which  the  founders  of  the  republic 
intended  to  apply  mainly  in  a  broad  sense  to  the  legislature  and  the  execu- 
tive was  later  carried  to  extreme  lengths  by  the  division  of  the  executive 
department  against  itself.  In  this  process,  the  governor  has  been  in  law, 
although  not  in  the  public  mind,  absolved  practically  from  responsibility 
for  administration.  This  is  applied  with  special  force  to  the  finances  by 
the  adoption  of  the  practice  of  making  the  treasurer  as  well  as  the  comp- 
troller elective  by  popular  vote.  This  has  been  done  on  the  assumption 
that  these  two  ofificers  were  in  charge  of  collecting  and  auditing  func- 
tions and  that  they  would  continually  watch  each  other  and  report  neglect 
of  duty. 

If  provision  is  made  that  the  governor  shall  be  the  responsible  head 
of  the  administration,  the  assumption  that  the  treasurer  should  be  inde- 
pendent fails.  In  the  first  place  the  two  officers  are  almost  uniformly  of 
the  same  party  and  are  subordinated  by  party  loyalty  to  the  outside  irre- 
sponsible political  organization.  Even  when  the  governor  is  in  a  weak 
position  as  at  present  the  element  of  protection  is  thin  and  shadowy. 
Each  is  governed  by  standards  and  discipline  of  the  dominant  party  con- 
trol. We  can  discover  no  noteworthy  instance  of  a  treasurer  waging  war 
on  the  governor  or  vice  versa.  At  the  present  time,  this  may  also  be 
said  of  the  comptroller  who  is  brought  under  the  domination  of  an 
irresponsible  system  of  party  control.  There  is  no  marked  instance  of 
the  comptroller  waging  war  on  the  administration  or  the  treasurer  as  the 
disburser  of  funds,  for  neglect  of  duty  or  malfeasance  in  office.  But  fur- 
ther than  this  the  present  organization  is  inconsistent  with  itself.  The 
legislature  in  its  financial  measures,  has  not  kept  the  logical  functions  of 
the  two  departments,  collection,  custody,  and  disbursement,  and  audit, 
entirely  separate  in  practice,  and  has  thus  destroyed  in  part  the  very 
ground  for  their  separate  distinct  organization  and  for  popular  election 
of  the  incumbents. 

Members  of  the  convention  are  familiar  with  the  organization  of  the 
financial  administration  of  the  federal  government  wltich  combines  the 
functions  of  treasurer  and  auditor  in  one  department  and  makes  the  whole 
responsible  to  the  president  who  in  turn  is  responsible  to  the  public. 
While  the  combining  of  auditing  and  administrative  functions  is  not 
urged  for  reasons  already  stated,  the  history  of  125  years  amply  proves 
the  desirability  of  making  the  treasurer  a  part  of  a  coordinated  plan  for 
administering  the  affairs  of  the  government.  Further  confirmation  of  this 
conclusion  is  found  in  the  fact  that  this  is  the  original  relation  of  the 
treasurer  in  every  existing  government  which  provides  for~a  responsible 
chief  executive. 

110 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


The  Comptroller. 

The  work  of  this  office  is  the  subject  of  Chapter  VIII. 

Until  the  passage  of  the  Hinman  act  amending  the  tax  law  and 
establishing  the  state  tax  department,  the  comptroller  was  in  charge  of 
several  important  financial  functions  in  connection  with  the  supervision 
of  the  levying  and  collecting  of  taxes.  The  governor  has  signed  the  bill 
and  when  the  office  is  organized  practically  the  only  proprietary  activity 
carried  on  by  the  comptroller  will  be  the  general  supervision  which  he  ex- 
ercises over  the  state  printing.  This  responsibility  should  be  placed  in  an 
officer  who  performs  the  services  of  a  central  purchasing  agent  and  the 
comptroller  should  be  in  a  position  to  pass  critically  and  report  on  his  acts. 

Need  for  a  Central  Accounting  and  Property  Division 

No  more  potent  argument  in  favor  of  the  establishment  of  an  execu- 
tive organization  for  providing  administrative  information  through  the 
keeping  of  accounts,  can  be  had  than  that  presented  during  the  gov- 
ernor's hearings  on  finance  bills.  There  the  chief  executive  of  the  state, 
responsible  to  the  people  for  the  economical  administration  of  all  depart- 
ments immediately  under  his  supervision  and  partially  responsible  for 
all  expenditures  on  account  of  the  veto  power  vested  in  him,  is  required 
to  pass  upon  detailed  financial  requirements  without  any  machinery 
having  been  provided  to  supply  the  needed  information. 

The  only  central  accounting  agency  at  the  present  time  is  that  main- 
tained by  the  comptroller.  All  accounts  are  established  by  the  comp- 
troller for  the  purposes  of  his  ofifice,  and,  considering  this  fact,  it  is  not 
surprising  that  these  accounts  do  not  reflect  the  information  necessary 
to  the  chief  executive  in  the  administration  of  his  many  departments. 
It  would  be  as  unwise  to  require  the  comptroller  to  maintain  the  kind 
of  accounts  needed  by  the  governor  as  it  would  be  to  continue  the  present 
inadequate  system.  The  comptroller  is  responsible  to  the  people  for  one 
specific  function,  i.  e.,  financial  auditing.  The  governor  is  responsible 
to  the  people  for  the  administration  of  the  state's  affairs.  The  accounts 
needed  to  prevent  the  misappropriation  of  funds  or  mischarging  against 
appropriation  bills  are  entirely  inadequate  and  essentially  different  from 
those  needed  by  the  chief  executive  in  enforcing  proper  administration 
in  the  various  departments,  bureaus  and  offices,  for  whose  actions  he  is 
responsible. 

What  is  needed  is  obvious :  a  central  accounting  and  property  divi- 
sion under  the  complete  supervision  of  the  particular  official — the  gov- 
ernor— to  whom  the  information  is  absolutely  essential  for  the  enforce- 
ment of  administrative  economy  and  efficiency. 

A  Central  Purchasing  Division 

With  the  exception  of  the  work  undertaken  by  the  fiscal  supervisor 
and  special  committees  in  the  institutional  departments  and  the  central 

111 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

control  over  the  state  printing,  nothing  has  been  done  to  place  the  pur- 
chasing of  the  state  of  New  York  upon  an  efficient  basis.  Otherwise, 
practically  every  department,  board,  bureau  and  office  of  the  state  gov- 
ernment carries  on  its  purchasing  wholly  independently  of  any  central 
control,  except  that  of  audit. 

Economy  in  purchasing  depends  upon  two  factors:  (1)  the  estab- 
lishment of  standard  specifications,  and  (2)  the  standardization  of  pur- 
chasing methods,  which  is  usually  accompanied  by  the  centralization  of 
a  large  part  of  the  purchasing. 

What  is  needed  is  a  strong  central  agency  which  will  develop  and 
enforce  the  use  of  standard  specifications,  standardize  purchasing  methods 
and  actually  purchase  all  supplies,  materials  and  equipment  which  can 
economically  be  purchased  through  a  central  agency. 

It  has  been  suggested  that  when  the  salary  standardization  and  classi- 
fication work  of  the  present  senate  committee  on  civil  service  is  com- 
pleted, its  activities  be  directed  to  the  standardization  of  purchasing  speci- 
fications. But  no  matter  what  agency  is  selected  for  the  pioneer  work 
in  this  study,  it  is  essential  that  some  organization  be  set  up  which  will 
carry  on  the  routine  activities  connected  with  the  standardization  of 
specifications  and  purchasing  methods. 

In  addition  to  these  departments  of  government  which  are  desig- 
nated in  the  constitution  and  which  have  been  developed  by  legislation, 
there  are  a  number  of  other  departments  charged  with  financial  and  pro- 
prietary functions.  These  are  entirely  separate  from  the  departments 
designated  in  the  constitution. 

The  Tax  Department 

The  present  tax  department,  as  reorganized  by  law  during  the  last 
session  of  the  legislature,  is  a  development  from  a  former  organization 
called  "  the  tax  commission."  The  duties  of  the  new  tax  department, 
which  is  under  the  supervision  of  a  commission,  may  be  briefly  stated 
as  the  combined  duties  of  the  former  board  of  tax  commissioners  and 
the  former  duties  of  the  comptroller  in  supervising  the  levying  and  col- 
lection of  corporation  franchises,  transfer  and  mortgage  taxes.  The 
former  board  of  tax  commissioners  had  supervision  over  the  local  tax 
officials,  and  every  second  year  were  required  to  visit  each  county  to  in- 
quire into  methods  of  assessment.  It  approved  assessment  maps  for 
cities  and  towns,  determined  appeals  in  the  matter  of  county  equalization 
of  assessments,  fixed  and  determined  annually  the  values  of  special  fran- 
chise property  and  equalized  the  assessment  thereof  with  other  real 
property  in  the  city,  town  or  village  where  special  franchise  property  is 
located,  supervised  the  operation  of  the  mortgage  tax  law,  audited  the 
mortgage  tax  collections  and  examined  the  records  of  counTy  clerks  and 
registers  in  connection  therewith.  ATembers  of  this  board  were  also 
members    of    the    state   board    of    equalization    that    prepared    data    on 

112 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


which  the  equahzation  table  was  adopted.  This  duty  has  also  been  trans- 
ferred to  the  new  tax  department.  For  further  detail  as  to  the  organiza- 
tion of  the  former  tax  commission  see  pages  263-267  of  the  report  on  the 
organization  and  functions  of  the  state  government. 

The  transfer  tax  bureau,  the  corporation  tax  bureau,  the  secured 
debt  tax  bureau  and  the  mortgage  tax  division,  formerly  of  the  comp- 
troller's office,  had  charge  of  the  activities  transferred  to  the  new  tax  de- 
partment. A  detailed  statement  of  the  organization  and  functions  of 
these  divisions  of  the  tax  commission  and  the  comptroller's  office  before 
the  transfer  may  be  found  in  the  descriptive  report  on  the  organization 
and  functions  of  the  state  government.  In  this  relation  attention  is  called 
to  the  fact  that  the  reorganization  does  not  provide  for  the  establishment 
of  amounts  to  be  collected,  and  for  the  collection  of  the  amounts  so 
determined.  This  is  a  division  of  functions  that  could  be  readily  made 
in  case  of  consolidation  of  all  financial  functions  under  one  "  political " 
head  with  separate  "  technical  "  bureau  heads  for  carrying  on  the  busi- 
ness. ,. 

Department  of  Excise 

Certain  activities  of  tlie  department  of  excise  are  to  be  included  in 
the  general  proprietary  activities  of  the  state.  These  have  to  do  with 
licensing  liquor  dealers  or  the  determination  of  facts  and  conditions, 
knowledge  of  which  is  essential  to  fixing  the  charge.  The  department 
also  collects  amounts  assessed  against  retail  liquor  dealers,  together  with 
fines,  penalties,  forfeitures  and  transfers  and  pays  one-half  of  same  to 
the  city  or  town  in  which  the  collections  are  made.  In  addition,  the  de- 
partment collects  taxes  paid  by  the  bottlers  of  malt  liquors  and  common 
carriers,  and  forfeited  tax  bonds.  It  prosecutes  or  defends  civil  actions 
or  proceedings  brought  under  the  liquor  tax  law.  (See  pages  125-131  of 
report  on  organization  and  functions  of  the  state  government.) 

Here  is  another  case  of  defective  organization  due  to  the  decentrali- 
zation of  the  financial  functions,  and  the  collection  of  discordant  func- 
tions under  the  one  administrator.  It  does  not  contribute  to  good  admin- 
istration to  put  in  the  hands  of  one  man  the  powers  and  duties  above 
enumerated  unless  provision  is  made  for  central  control  through  inspec- 
tion, etc.  If  all  the  financial  functions  were  under  one  executive  there 
would  be  a  choice  of  alternatives  that  is  now  lacking. 

The  Centralisation  of  Financial  Administration 

The  mere  enumeration  of  the  different  departments  and  boards  and 
commissions  having  financial  functions  and  their  respective  duties  is 
itself  a  criticism  of  the  present  system.  The  decentralization  of  revenue 
control  is  thus  evident.  For  example,  the  tax  commission,  the  board  of 
equalization,  and  the  comptroller's  office  all  have  arbitrary  jurisdictional 

113 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

rights  over  certain  phases  of  the  state's  taxation  and  revenue  problems. 

Moreover,  practically  all  of  the  important  departments  of  govern- 
ment and  the  governor  himself  are  engaged  in  collecting  miscellaneous 
revenue  through  the  issuance  o.f  various  kinds  of  licenses,  permit  privi- 
leges and  the  charging  of  fees  that  could  be  much  more  effectively  man- 
aged if  the  whole  subject  were  considered  as  a  part  of  one  problem. 

Year  after  year  recommendations  have  been  presented  to  the  legis- 
lature and  bills  have  been  prepared  looking  toward  centrahzation  of  re- 
lated financial  activities.  The  opportunity  is  now  presented  to  the  con- 
vention to  provide  efficient  and  responsible  financial  administration 
through  the  creation  of  great  departments  of  government  and  the  proper 
delimitation  of  their  spheres  according  to  standards  worked  out  and 
successfully  applied  in  both  public  and  private  business. 

Conservation  Department 

The  conservation  department  by  its  title  is  essentially  a  proprietary 
organization,  but  on  account  of  the  fact  that  certain  protective  and  regu- 
lative duties  have,  in  the  past,  been  assigned  to  this  department,  only  cer- 
tain of  its  activities  may  come  properly  within  the  scope  of  this  chapter. 
These  are  the  work  of  : 

1.  The  division  of  lands  and  forests — which  is  charged  with  the 

administration  of  the  laws  enacted  to  protect  the  lands 
and  forests  of  the  state  which  comprehends  tree  culture, 
reforestation,  care  and  management  of  state  parks  and 
reservations,  and  the  protection  of  the  lands  and  forests 
from  fire. 

2.  The  division  of  inland  waters — which  is  charged  with  the  ad- 

ministration, subject  to  the  approval  of  the  commission, 
of  all  laws  relating  to  state  jurisdiction  over  water  stor- 
age and  hydraulic  development,  water  supply,,  river  im- 
provement, drainage,  irrigation  and  navigation  of  water 
ways  other  than  canals. 

3.  Division  of  fish  and  game — which  is  charged  with  the  admin- 

istration, subject  to  the  approval  of  the  commission,  of 
the  laws  relating  to  state  jurisdiction  over  fish  and  game, 
and  for  the  propagation  thereof,  including  the  propagation 
and  protection  of  shell  fish  and  shell  fish  beds,  the  issu- 
ance of  hunters'  licenses  and  the  maintenance  of  a  game 
protective  force. 

fSee  pages  727-741  of  report  on  the  organization  and 
functions  of  government.) 


114 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


There  would  seem  to  be  little  reason  for  the  existence  of  a  separate 
department  of  conservation  in  any  event.  Having  in  mind  effective 
correlation  of  functions,  there  is  another  group,  "  Public  Works,"  into 
which  it  might  be  brought  for  purposes  of  administration.  The  justifica- 
tion for  this  would  be  that,  while  the  works  group  is  one  which  renders  a 
public  service  in  operating  a  canal,  its  primary  function  is  providing  public 
facilities  for  transportation — the  primary  prerequisite  of  which  is  the 
acquisition  and  maintenance  of  great  state  properties.  The  setting  aside 
of  the  conservation  divisions  as  a  special  proprietary  group  could  be 
justified  by  reference  to  the  highly  specialized  and  technical  requirement 
of  proprietary  management.  Again  there  are  direct  public  aspects  of 
the  conservation  department  which  would  suggest  placing  it  in  some 
public  service  group.  It  is  only  a  question  as  to  which  would  provide 
the  better  correlation  of  activities  and  forces  used. 

Commissioners  of  the  Land  Office 

Public  lands  of  the  state  and  general  management  of  Indian  affairs 
are  under  the  control  and  direction  of  this  commission — an  ex-ofificio 
board  composed  of  the  secretary  of  state,  lieutenant-governor,  speaker  of 
assembly,  comptroller,  treasurer,  attorney-general,  and  the  state  engineer. 
This  has  all  the  weakness  of  an  ex-officio  organization.  What  is  needed 
is  an  administrative  head  who  is  responsible  to  an  executive.  In  so  far 
as  it  is  desired  to  utilize  the  services  of  an  ex-officio  board  they  should 
form  an  ordinance  body,  and  not  an  executive. 

A  group  of  state  agencies  closely  allied  in  their  functions  to  those 
now  vested  in  the  conservation  department  and  land  office,  is  found  in 
the  various  commissions  charged  with  custody  of  historic  buildings  and 
parks  scattered  over  the  state.  These  will  be  found  described  in  the 
report  on  organization  and  functions,  pages  725  to  755.  With  what- 
ever group  the  conservation  work  is  associated,  it  is  thought  that  the 
supervision  of  these  parks  and  memorials  might  well  go  with  it. 

The  Attorney  General 

It  has  been  said  concerning  administrative  law  that  legislatures 
express  opinions  about  what  should  be  done,  but  the  one  who  makes  the 
law  is  the  corporation  counsel  or  attorney  general.  What  is  meant  is  this  : 
that  the  law  must  be  construed  each  time  an  officer  acts ;  that  with  respect 
to  perhaps  nine  hundred  ninety-nine  acts  out  of  a  thousand  there  is  no 
difference  of  opinion  between  offfcers  as  to  the  way  it  should  be  construed  ; 
that  when  differences  arise  these  are  referred  to  the  executive  who  must 
give  final  approval,  and  if  he  does  not  wish  to  assume  responsibility  for 
deciding  what  construction  should  govern  the  transaction  he  refers  the 
matter  to  the  law  office  for  opinion.  Now,  the  law  officer  is  simply  an 
adviser,  but  what  gives  him  his  power  as  a  lawmaker  is  the  fact  that 

ll'5 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

executive  or  administrative  officers  may  be  absolved  from  legal  responsi- 
bility for  an  act  if  it  is  according  to  the  opinion  of  the  attorney  general. 
There  being  no  way  of  locating  and  enforcing  responsibility  for  official 
acts  politically  through  a  chief  executive,  it  is  thought  that  the  thing  to 
do  is  to  make  the  law  officer  directly  responsible  through  the  electorate 
for  his  opinions.  And  so  it  is  that  in  a  large  number  of  our  irresponsible 
representative  governments  the  law  officer  is  elected.  But  it  is  also  of 
interest  to  note  that  in  all  responsible  representative  governments  the  law 
officer  is  appointed,  and  in  the  federal  government  the  attorney  general 
is  a  member  of  the  president's  cabinet,  removable  at  his  will.  There, 
whatever  conclusion  may  be  drawn  with  respect  to  the  position  of  the 
president  as  chief  executive,  he  is  the  only  one  that  must  go  before  the 
people  to  explain  his  acts,  and  must  assume  political  responsibility  for 
acts  of  the  administration  based  on  the  opinions  of  the  attorney  general. 
What  is  of  special  interest  is  this:  that  a  thousand  opinions  are  asked 
from  the  law  officer  to  one  asked  for  from  the  courts;  that  under  our 
system  the  law  officer  makes  the  law  governing  the  administration  of 
affairs ;  that  making  him  politically  independent  gives  to  the  executive 
another  way  of  dodging  political  responsibility ;  that  it  is  a  conception  of 
organization  that  finds  its  justification  as  a  "  check  "  in  a  government 
which  has  no  politically  responsible  head. 

Given  a  political  system  in  which  there  is  a  real  chief  executive, 
then  the  political  independence  of  the  law  office  presents  only  vices  with 
no  offsetting  virtues.  The  vices  are  found  in  the  continuing  development 
of  "  rep  tape."  When  it  would  be  in  the  interest  of  better  adminis- 
tration to  cut  it,  the  executive  is  constantly  confronted  by  adverse  opin- 
ions of  the  law  officer  that  makes  it  many  times  more  difficult  for  him 
to  exercise  what  would  otherwise  be  perfectly  good  executive  discretion. 
When  a  matter  comes  before  the  executive  he  must  first  decide  whether 
he  will  assume  responsibility  for  action  without  referring  to  the  law 
officer  for  advice,  or  run  the  risk  of  an  opinion  which  is  adverse.  And 
the  disposition  of  the  officer  is  likely  to  be  adverse.  The  reason  is  obvious. 
The  law  officer  has  no  political  or  other  responsibility  in  common  with 
the  executive.  He  is  always  safe  in  saying  that  what  has  been  done  for 
years  is  in  accordance  with  law,  but,  whatever  be  the  business  or  adminis- 
trative considerations  which  demand  a  departure  from  old  practice,  when 
he  gives  an  opinion  supporting  such  departure,  he  runs  the  risk  of  being 
attacked.  And  all  the  forces  which  link  the  old  contingent,  those  who 
stand  for  continuing  the  ancient  practice  because  of  all  of  the  personal 
interests,  both  inside  and  outside  the  government,  that  have  become  crys- 
talized  around  it.  are  organized  for  the  attack. 

If  any  national  or  personal  interest  is  jeopardized  which  4S  cogniz- 
able in  a  court  of  law,  this  interest  may  be  amply  protected,  and  the 

116 


ADMINISTRATION    OF    PROPRIETARY    FUNCTIONS 


law  office  as  at  present  organized  is  simply  one  of  the  great  negative 
forces  in  government — a  negative  force  that  in  its  operation  is  respon- 
sible for  the  construction  of  some  of  the  most  involved,  unbusinesslike, 
ludicrous  practices  which,  in  a  system  that  provides  only  for  divided 
powers  and  no  effective  central  executive  control,  continue  to  become  more 
involved  and  unbusinesslike  with  each  added  legislative  requirement. 
Laws  made  by  detached  committees,  procedures  elaborated  by  detached 
bureaucracies ;  practices  developed  without  controversy  by  construction 
"  down  the  line  "  ;  situations  arising  that  could  not  be  foreseen  demanding 
a  change  in  practice ;  proposals  referred  to  detached,  irresponsible 
executives — irresponsible  so  long  as  they  do  not  make  changes ;  references 
to  a  detached  attorney  general  to  avoid  executive  responsibility ;  the 
law  officer  for  self-protection,  doing  the  same  thing — these  are  among 
the  matters  to  be  considered  when  deciding  whether  the  constitution 
should  provide  for  a  responsible  chief  executive,  and  a  law  officer  who 
will  be  constituted  a  general  staff  adviser. 

An  Employment  Department 

Already  the  function  and  purpose  of  a  civil  service  department  which 
would  operate  positively  instead  of  negatively  and  be  co-operative  in  the 
development  of  better  conditions  for  employees  and  better  conditions  fot 
management  have  been  discovered  as  a  part  of  Chapter  IV.  In  this  rela- 
tion question  is  asked  as  to  whether  this  department  should  not  be  so  de- 
veloped that  there  would  be  a  close  working  relation  between  it 
and  the  officers  charged  with  responsibility  for  preparing  the  budget, 
for  making  contracts  for  services  other  than  personal,  such  as  repairs, 
construction,  printing,  etc.,  and  for  decisions  on  matters  of  administrative 
law.  Every  request  for  departmental  appropriations  involves  questions 
fundamental  to  civil  service;  one  of  the  requisites  to  decisions  as  to 
wliether  the  government  will  undertake  its  own  repairs,  constructing, 
printing,  etc.,  is  conditions  governing  employment;  every  decision  having 
to  do  with  proprietary  matters  may  make  it  desirable  to  have  friendly 
legal  advice.  Whether  a  cabinet  system  is  considered  or  not,  the  question 
as  to  what  will  be  the  means  of  correlating  all  these  activities  dealing 
with  proprietary  matters — matters  of  finance,  of  purchase,  of  employment, 
as  well  as  custodianship  of  funds  and  properties  of  the  state — is  squarely 
before  the  convention.  If  a  cabinet  system  is  favored,  then  question  is 
raised  as  to  whether  the  branch  handling  employment  shall  be  made  a 
department  and  the  head  given  a  place  in  the  cabinet  along  with  the 
attorney  general  and  the  finance  officer — the  three  to  constitute  a  proprie- 
tary and  staff  group  in  the  cabinet,  whose  interests  comprehend  the  entire 
administration,  as  distinguished  from  the  public  service  group,  each 
executive  within  which  is  interested  in  earning  for  himself  applause  by 
obtaining  facilities  for  promoting  a  particular  service. 

117 


CHAPTER  XI 

ORGANIZATION  FOR  THE  ADMINISTRATION  OF  MILITARY 
FUNCTIONS  OF  THE  STATE  GOVERNMENT. 

Whether  from  a  sense  of  necessity,  or  due  to  the  fact  that  more  ex- 
perience had  been  gained  in  the  organization  of  this  branch  of  the  pubHc 
service,  before  the  adoption  of  the  first  constitution,  provision  for  central 
direction  and  control  over  the  administration  of  the  military  functions 
has  been  more  fully  developed  than  have  the  provisions  for  the  central 
direction  and  control  of  the  non-military  public  service  functions  of  the 
government.  From  the  beginning,  the  governor  has  been  constituted  the 
"commander-in-chief  of  the  military  and  naval  forces  of  the  state" 
thereby  being  made  the  responsible  leader  with  the  power  to  direct  and 
control.  Since  1846  the  governor  has  also  been  given  an  organization 
by  means  of  which  this  responsibility  may  be  discharged — an  organization 
suited  to  the  exercise  of  his  executive  powers.  To  assist  the  governor  in 
the  performance  of  his  duty  as  head  of  the  military  forces,  he  is  not  only 
given  the  power  but  it  is  made  his  main  duty  to  "  appoint  the  chiefs  of 
the  several  staff  departments,  his  aide-de-camp  and  military  secretary, 
all  of  whom  shall  hold  office  during  his  pleasure."  And  the  duty  is  im- 
posed on  the  legislature  to  appropriate  a  sufficient  amount  to  cover  the 
military  expenses.  This  later  provision  was  also  made  constitutional  law 
in  1846,  and  has  since  remained.  Especial  attention  is  called  to  the  fact 
that  the  constitution  definitely  contemplates  that  the  governor  shall  have 
"  staff "  departments,  and  shall  be  given  the  overhead  personnel  and 
organization  for  keeping  in  touch  with  military  activities.  Whereas  in 
the  civil  departments  no  such  constitutional  provision  has  been  made, 
except  in  providing  a  "  civil  service  "  recruiting  organization,  and  for 
two  years  a  staff  department  called  the  "  department  of  efficiency  and 
economy." 

The  "  administration  "  of  the  military  government  of  the  state  has  at 
all  times  been  considered  as  an  organization  separate  and  distinct  from 
the  civil  government,  and  having  no  point  of  contact  with  civil  govern- 
ment except  in  a  common  executive,  a  common  treasurer,  and  legal  ad- 
viser, the  attorney  general.  From  the  beginning,  it  has  been  based  on  the 
idea  of  a  citizen  soldiery,  it  being  declared  in  the  constitution  of  1777  that 
"  it  is  the  duty  of  every  man  who  enjoys  the  ])rotection  of  society  to  be 
prepared  and  willing  to  defend  it."  The  exception  made  in  the  first  three 
constitutions  was  of  persons  who  had  conscientious  scruples  against  mili- 
tary service,  who  might  be  excused  by  paying  an  exemption  fee  that  in 
1728  was  fixed  at  ten  pounds  ($50.00)  per  year.  The  constitution  of  1894 
made  "all  ablebodied  male  citizens  between  the  ages  of  eighteen  and  forty- 

118 


ADMINISTRATION    OF    MILITARY    FUNCTIONS 


five  years,  who  are  residents  of  the  state  "  members  of  the  state  militia. 
The  first  constitution  provided  for  the  storage  of  mihtary  equipment  and 
suppHes  in  each  county  in  the  thought  that  the  inhabitants  would  organize 
themselves  for  military  practice,  thereby  keeping  themselves  in  prepared- 
ness, and  show  their  wilhngness  to  perform  military  service. 

While  the  government  has  a  right  to  impress  persons  into  military 
service,  it  has  usually  been  revolutionary,  and  the  original  concept  of  mili- 
tary organization  was  that  it  should  be  thoroughly  democratic.  The 
persons  Avho  came  together  for  the  purpose  of  defense  organized  them- 
selves just  as  they  would  for  any  other  purpose,  being  empowered  to  select 
their  own  officers.  This  early  practice  was  incorporated  in  the  constitu- 
tions of  1821  and  1846.  The  provision  with  respect  to  election  in  1821 
being :  "  militia  officers  shall  be  chosen  or  appointed  as  follows — captains, 
subalterns,  and  non-commissioned  officers  shall  be  chosen  by  the  written 
votes  of  the  members  of  the  respective  companies ;  field  officers  of  regi- 
ments and  separate  battalions,  by  the  written  votes  of  the  commissioned 
officers  of  the  respective  regiments  and  separate  battalions ;  brigadier- 
generals  by  the  field  officers  of  their  respective  brigades ;  major-generals, 
brigadier-generals,  and  commanding  officers  of  regiments  or  separate  bat- 
talions shall  appoint  the  staff  officers  of  the  respective  divisions,  brigades, 
regiments,  or  separate  battalions."  At  this  time,  the  governor  with  the 
consent  of  the  senate  appointed  all  major-generals,  brigade  inspectors, 
and  chiefs  of  stafif  departments  except  the  adjutant  general  and  com- 
missary general.  The  adjutant  general,  the  administrative  head  of  the 
militia  was  appointed  by  the  governor,  alone,  though  the  commissary  gen- 
eral was  appointed  by  the  legislature  in  the  same  manner  as  the  treasurer, 
the  attorney  general,  and  the  comptroller  on  nomination  of  the  council  of 
appointments.  In  1894  the  constitution  was  amended  so  that  the  legis- 
lature may  pass  laws  for  changing  the  mode  of  election  and  appointment 
of  the  military  personnel,  by  a  vote  of  two-thirds  of  each  house.  But  it 
was  specifically  provided  that  the  governor  should  nominate  and  with  the 
consent  of  the  senate  appoint  all  major-generals,  and  that  he  alone  should 
appoint  and  remove  at  will  the  adjutant  generals  and  other  staff  officers, 
the  militarv  aid  and  secretary,  so  that  these  officers  are  placed  beyond  the 
power  of  the  legislature  to  break  down  the  control  of  the  executive  over 
the  branches  of  the  military  service. 

Specifically,  the  organizations  charged  with  carrying  on  various  sub- 
functional  activities  are : 

1.  The  adjutant  general's  department. 

2.  The  state  board  of  armory  commissioners. 

3.  The  armory  board  of  the  city  of   New  York. 

4.  The  national  guard. 

5.  The  naval  militia. 

119 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

The  Adjutant  General's  Department 

Under  the  governor  the  adjutant  general  is  the  executive  head  of 
the  mihtary  department.  What  is  called  his  "  department "  is  an  organi- 
zation for  assisting  him  in  carrying  out  his  functions  as  chief  adminis- 
trator. The  department  is  charged  with  issuance  of  orders,  the  auditing 
of  militia  accounts,  the  keeping  of  financial  and  military  records,  the 
receipt,  custody  and  issuance  of  military  stores,  supplies  uniforms  and 
equipment,  and  the  accounting  to  the  federal  government  for  government 
stores,  and  supplies  issued  to  the  state.  In  case  of  war,  the  adjutant 
would  be  responsible  for  organizing  the  reserve  forces  of  the  state,  after 
the  organized  militia  had  been  called  into  active  service. 

The  State  Armory  Board 

This  organization,  consisting  of  the  commanding  general  of  the 
national  guard,  the  commanding  officer  of  the  naval  militia,  and  the 
brigade  commander  in  whose  department  the  particular  armory  is  situ- 
ated, has  general  supervision  of  the  construction  and  maintenance  of 
the  various  armories  of  the  state  other  than  those,  except  two,  within 
the  city  of  New  York. 

The  Armory  Board  of  Nezv  York  City 

This  organization,  consisting  of  the  mayor,  the  comptroller,  presi- 
dent of  the  board  of  aldermen,  president  of  the  department  of  taxes  of 
New  York  City,  the  commodore  of  the  naval  militia,  and  the  two 
brigadier  generals  in  command  of  the  brigade  stationed  in  New  York 
City,  has  general  supervision  of  the  construction  and  maintenance  of  the 
armories  owned  and  operated  by  the  city  of  New  York. 

The  National  Guard  and  the  Naval  Militia 

The  national  guard  of  the  state  of  New  York  consists  of  the  various 
organized  regiments  of  infantry,  cavalry,  engineers,  and  artillery  with 
their  usual  staff  agencies.  The  naval  militia  consists  of  the  organized 
naval  forces  of  the  state. 

Relation  of  State  Militia  to  the  Federal  Government 

The  military  organizations  of  the  various  states  have  a  dual  allegiance 
which  is  recognized  to  the  extent  that  the  expenses  of  training  and 
equipping  the  state  troops  are  borne  partly  by  the  United  States  govern- 
ment, and  partly  by  the  state.  The  responsibility  for  the  protection 
of  any  state  from  invasion  having  been  assumed  by  the  national  govern- 
ment, the  only  important  state  duty  for  which  the  militia  is  liable  for 
call  is  in  the  case  of  strike  or  riot. 

The  military  functions  of  the  militia  are  to  cooperate  with  federal 
authorities  against  a  national  enemy  and  the  entire  program  of  training 

120 


ADMINISTRATION    OF    MILITARY    FUNCTIONS 


has  been  to  this  end.  The  national  guard  is  the  reserve  of  the  federal 
army.  In  order  that  the  state  troops  will  be  uniformly  instructed  and 
equipped,  the  war  department  and  the  navy  department  have  prescribed 
certain  regulations  for  controlling  the  national  guard  of  the  various 
states.  The  division  of  militia  affairs  of  the  war  department  and  the 
division  of  naval  militia  of  the  naval  department  were  organized  especi- 
ally for  this  work,  and  in  addition,  both  departments  assign  officers  from 
the  regular  army  and  navy  to  act  as  instructor  inspectors  to  the  militia. 
This  is  a  cooperative  relation,  however,  which  is  permitted  by  sufferance 
on  the  part  of  the  state  governments — the  regulations  promulgated  by 
the  federal  authorities  are  not  binding  in  any  way  upon  the  state  forces. 

State  Constabulary 

From  time  to  time  the  subject  of  a  state  constabulary  has  come  up  for 
discussion.  Without  going  into  the  desirability  of  such  a  corps  as  a 
state  police  force,  it  would  have  a  bearing  on  the  need  for  the  develop- 
ment of  the  state  militia.  The  organization  of  a  constabulary  would 
greatly  lessen  the  chances  of  using  the  militia  in  strikes  or  riots,  thereby 
making  the  service  in  the  militia  more  attractive  and  would  remove  the 
militia  from  the  necessity  of  performing  a  kind  of  service  that  is  domi- 
nated more  or  less  by  class  or  semi-political  interests. 

Conditions  Which  Make  for  Irresponsibility 

Having  briefly  described  the  present  organization  it  remains  to  call 
attention  to  what  seems  to  be  defects  from  the  view-point  of  administra- 
tion. These  apparent  defects  are  brought  out  in  the  official  relations  of 
the  heads  of  the  "line"  and  "staff" ;  the  assigning  of  line  "military" 
duties  to  the  adjutant  general ;  the  unnecessary  clerical  work  put  on  the 
governor  in  signing  commissions  of  all  officers;  provision.^,  for  construc- 
tion of  armories,  and  the  present  provision  of  law  placing  the  burden  of 
maintaining  part  of  the  armory  on  localities. 

The  major-general  who  is  the  chief  line  officer  of  the  national 
guard,  is  appointed  by  the  governor,  with  the  advice  and  consent  of  the 
senate  and  holds  office  until  he  attains  the  age  of  sixty-four  years,  but  is 
removable  only  by  the  order  of  a  general  court-martial,  or  by  the  order 
of  the  senate  after  public  trial  and  conviction  on  the  charges  of  miscon- 
duct. 

The  power  of  appointment  carries  with  it  no  disciplinary  force — ^only 
the  power  of  removal  may  be  used  to  enforce  responsibility  and  that  is 
reserved  to  the  senate.  The  commodore  holds  a  position  in  the  naval 
militia  similar  to  that  of  the  major-general  in  the  national  guard.  As 
distinguished  from  these,  the  adjutant  general  is  appointed  by  the  gov- 
ernor to  serve  during  the  term  of  the  governor,  and  as  has  been  pointed 
out,  he  is  removable  at  the  will  of  the  governor.     The  adjutant  general 

121 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

is  the  medium  of  communication  between  the  governor  and  the  organized 
mihtia — a  vice  governor  on  military  affairs  of  the  state.  Thus  we  have 
a  condition  in  which  the  chief  staff"  officer  of  the  organized  mihtia, 
who  is  responsible  to  the  governor,  issuing  orders  in  the  name  of  the 
governor  to  the  chief  line  officers  who  are  irresponsible  or  if  at  all  respon- 
sible, only  to  the  senate.  The  chief  executive  should  consequently  be 
given  the  power  to  call  for  the  resignation  of  the  major-general,  and 
appoint  another  from  the  line  without  putting  the  incumbent  out  of  the 
service.  This  would  simply  mean  that  the  executive  would  be  respon- 
sible for  the  direction  and  control  of  the  forces.  It  would  be  consistent 
with  good  military  organization. 

Questions  Pertaining  to  Rank 

No  military  qualifications  are  necessary  for  appointment  to  the 
office  of  adjutant  general,  which  insures  to  the  governor  the  greatest 
freedom  in  the  selection  of  his  appointee.  However,  the  incumbency 
carries  with  it  the  military  rank  of  brigadier  general,  which,  in  turn, 
raises  the  question  of  what  to  do  with  our  ex-adjutant  generals.  The 
problem  has  been  solved  by  assigning  the  adjutant  general  to  the  list  of 
brigadier  generals,  just  before  the  end  of  his  term.  It  may  be  seen  that 
political  pressure  might  be  brought  upon  the  governor  to  saddle  upon  the 
next  administration  a  brigadier  who,  though  he  may  have  been  an  excel- 
lent adjutant  general,  is  without  qualifications  or  experience  necessary 
for  a  general  ofificer.  The  technically  qualified  commanding  officer  of  the 
national  guard  holds  the  rank  of  major  general, — one  grade  above  that 
of  brigadier.  This  arrangement  is  another  serious  objection  to  the  present 
plan  of  granting  military  rank  to  the  adjutant  general. 

The  Signing  of  Commissions 

The  constitution  requires  that  "commissioned  officers  shall  be  com- 
missioned by  the  governor  as  commander-in-chief."  The  practice  of 
signing  appointments  of  commissioned  officers  is  merely  routine  as  the 
governor  cannot,  and  is  not  expected  to  have  knowledge  of  the  qualifica- 
tions of  the  persons  so  appointed,  and  since  he  must,  of  necessity,  rely 
upon  the  advice  of  his  adjutant  general,  it  would  seem  that  this  duty 
should  be  performed  by  the  person  who  is  assuming  responsibility,  as  a 
vice  governor  in  charge  of  the  military  department.  The  signature  of 
the  governor  may  add  to  the  historic  and  personal  value  of  the  document 
so  signed,  but  this  is  only  one  of  the  many  routine  duties  placed  on  the 
governor  by  constitution  and  statute,  which  could  well  be  removed. 

Construction  of  Armories  a  Quartermaster  Duty 

The  ex-officio  board  whose  duty  it  is  to  supervise  the  construction, 
alteration  and  maintenance  of  the  armories  of  the  state  and  other  mili- 

122 


ADMINISTRATION    OF    MILITARY    FUNCTIONS 


tary  buildings,  is  a  cumbersome  organization.  It  is  responsible  to  no 
one.  In  the  event  of  war,  all  the  officers  of  this  board  except  the  adju- 
tant general,  would  be  expected  to  be  in  the  field.  The  duty  of 
caring  for  the  armories  would  be  thrust  upon  the  adjutant  general  whose 
time  then  would  be  largely  taken  up  in  the  organization  of  the  reserve 
militia.  The  present  constitution  of  the  state  of  New  York  gives  the 
adjutant  general  the  powers  and  duties  of  the  several  staff  departments 
of  the  militia.  The  quartermaster  corps  is  the  staff  agency  which  is 
charged  with  furnishing  the  necessary  supplies  (not  military),  shelter 
and  transportation  for  the  army.  It  would  seem  that  caring  for  armories 
is  within  the  scope  of  this  agency's  proper  functions. 

Nezv  York  City  Performing  State  Functions 

With  two  exceptions,  New  York  City  owns  and  pays  bills  for  the 
alteration,  repair,  maintenance,  and  operation  of  the  armories  situated  in 
that  city.  The  criticisms  of  the  state  board  are  equally  applicable  to  the 
armory  board  of  New  York  City.  In  addition,  the  system  is  open  to 
further  criticism : 

1.  The  board  is  made  up  largely  of  political  officers  elected  on 

municipal  issues. 

2.  The  military  is  inadequately  represented. 

3.  The  administrations  of  the  city  and  the  state  might  be  of 

different  political  parties,  and  this  board  be  used  as  a 
means  whereby  the  city  could  seriously  embarrass  the 
state  government  in  the  development  of  its  financial  and 
military  policies. 


123 


CHAPTER    XII 

ORGANIZATION    FOR   THE  ADMINISTRATION    OF   PUBLIC 
SERVICE  FUNCTIONS 

i\s  has  been  pointed  out,  the  civil  services  which  are  rendered 
directly  to  the  public  by  the  government  are  now  organized  without  any 
attempt  at  correlation  and  without  adequate  provision  being  made  for 
executive  direction  and  control.  This  condition  is  described  and  discussed 
in  chapters  VII.  and  IX. 

The  Need  for  Grouping  Services  for  Purposes  of  Administration 

While  the  question  may  be  raised  with  respect  to  the  desirability  of 
central  executive  control  and  it  may  be  contended  that  it  is  better  to 
have  many  executives  who  are  responsible  directly  to  the  legislature,  or 
responsible  directly  to  the  people,  through  independent  elections,  this 
controversy  does  not  enter  here. 

The  intelligent  and  efficient  administration  of  public  services  requires 
that  they  be  so  grouped  that  those  which  are  intimately  related  and 
interdependent  in  their  operations  shall  be  under  the  same  excutive.  For 
the  purpose  of  considering  the  defects  in  the  present  organization,  there- 
fore, the  various  direct  services  to  the  public  which  are  not  military  in 
character  are  considered  under  group  heads  corresponding  to  the 
functions  listed  on  page  90. 

Part  I. — Organization  for  the  Administration  of  Activities  Having 
TO  Do  with  the  Promotion  of  Agriculture  and  Industry 

The  functions  which  may  be  enumerated  as  promoting  agriculture 
and  industry  may  be  briefly  outlined  as  follows :  The  cooperation  with 
farmers  and  farmers'  organizations  in  the  establishment  of  farmers' 
institutes  and  farm  bureaus ;  the  education  of  agriculturists  and  the 
general  public  in  matters  relative  to  agriculture,  farm  economics  and 
kindred  subjects  through  conferences,  lectures,  exhibits,  demonstrations, 
bulletins  and  reports;  the  prevention  of  diseases  of  animals  and  plants 
and  the  stamping  out  of  injurious  insects  or  other  pests ;  the  promotion 
of  animal  husbandry  and  the  protection  of  the  life  of  animals  useful  to 
man ;  the  inspection  of  farm  lands,  methods  of  cultivation,  stock  raising 
and  handling  in  state  and  county  institutions ;  the  inspection,  testing  and 
grading  of  agricultural  products,  commercial  feeding  stuffs  and  fertilizing 
materials;  the  issuance  of  licenses  for  the  sale  of  farm  produce  on 
commission,  milk  gathering  stations,  manufacture  and  sale  of  fertilizers 
and  commercial  feeding  stuffs ;  the  collection  and  compilation  of  agri- 
cultural statistics  and  information  valuable  to  farmers,  immigrants,  farm 

124 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

laborers,  etc.  Very  little  has  been  done  to  promote  enterprise  other 
than  agriculture,  but  whatever  the  state  undertook  to  do  of  this  character 
would  be  in  this  group  of  activities.* 

The  head  of  the  department  is  a  commissioner,  appointed  by  the 
governor  by  and  with  the  advice  and  consent  of  the  senate  for  a  term 
of  three  years.  Assisting  him  are  four  deputies,  who  are  appointed  by 
the  commissioner.    Their  duties  may  be  briefly  outlined  as  follows : 

1.  General  deputy  (Albany  office)  is  in  direct  charge  of  the  work 

of  the  various  bureaus  of  the  department  and  in  the 
absence  of  the  commissioner  acts  in  his  stead. 

2.  The  deputy  in  charge  of  state   farm  lands    (Albany  office) 

supervises  the  advisory  and  cooperative  work  in  con- 
nection with  the  farms  of  state  hospitals,  charitable  in- 
stitutions, prisons,  reformatories,  almshouses  and  other 
state  and  county  institutions ;  assists  the  bureau  of  veter- 
inary service  in  the  disposal  of  cattle  which  react  to 
tuberculin;  addresses  farmers'  institutes  and  agricultural 
societies  on  matters  of  interest  to  them. 

3.  The  deputy  in  charge  of  the  Buffalo  office  has  supervision  of 

the  work  of  the  department  in  the  counties  of  Cayuga, 
Chemung,  Genesee,  Livingston,  Monroe,  Ontario,  Schuy- 
ler, Seneca,  Steuben,  Wayne,  Wyoming,  Yates,  Alle- 
ghany, Cattaraugus,  Chautauqua,  Erie.  Niagara  and 
Orleans.  He  has  supervision  also  over  the  Buffalo 
division  of  the  bureau  of  dairy  products,  which  is  con- 
cerned with  the  work  of  agents  and  inspectors  investi- 
gating violations  of  the  agricultural  law  relating  to  dairy 
and  food  products  and  of  the  veterinarians  and  chemists 
in  his  territory. 

4.  The  deputy  in  charge  of  the  New  York  office  has  supervision 

of  the  work  of  the  department  in  the  counties  of  Queens, 
Richmond,  Rockland,  Suffolk,  Westchester,  Nassau  and 
Greater  New  York  City.  He  supervises  specifically  the 
work  of  agents  and  inspectors  investigating  violations  of 
the  agricultural  law  relating  to  dairy  and  food  products, 
and  of  the  veterinarians  and  chemists  within  his  territory. 

Conservation  Department 

The  division  of  fish  and  game  of  the  conservation  department  is 
charged  with  the  execution  of  the  laws  relative  to  the  protection  and  pro- 
pagation  of  fish  and   game;   the  issuance   of   hunters'   and   fishermen's 


*  See  report  on  organization  and   functions,   pages  299  to  315,  inclusive,   and 
chart  G  A,  page  298. 

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CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

licenses  and  the  maintenance  of  a  game  protective  force ;  the  supervision 
of  fish  hatcheries  and  game  preserves  and  the  stocking  of  streams  and 
forests  with  game ;  the  cooperation  with  individuals  and  associations  for 
the  protection  and  propagation  of  fish  and  game  (See  report  on  organi- 
zation and  functions,  pages  734  to  739  inclusive  and  chart  K  A,  page 
726). 

The  work  of  the  division  is  carried  on  through  several  bureaus  or 
branches  of  work  as  follows : 

1.  The  bureau   of   protection   of   fish   and  game   supervises  the 

work  of  game  protectors;  issues  hunting  and  trapping 
licenses  to  the  county  clerks  and  examines  their  reports; 
issues  licenses  for  the  possession  of  venison  and  the 
shipment  of  game,  and  receives,  examines  and  files  appli- 
cations for  pheasants  and  eggs. 

2.  The  bureau  of  inland  fisheries  issues  licenses  to  fishermen  and 

enforces  the  rules  of  the  commission  relative  to  the  grant- 
ing of  such  licenses. 

3.  The  bureau  of  marine  fisheries  supervises  the  work  of  fisheries' 

protectors ;  makes  surveys  of  marine  fishing  grounds  and 
grounds  for  the  propagation  of  shell  fish. 

4.  The  game  farm  is  conducted  for  the  propagation  of  game. 

5.  Fish    propagation    is    carried    on    through    several    hatcheries 

throughout  the  state.  The  foreman  of  the  various 
hatcheries  are  under  the  direct  supervision  of  the  chief 
fish  culturist.  There  are  10  stations  for  fish  propogation 
located  at — 

Adirondack, 

Bath, 

Caledonia, 

Chautauqua, 

Cold   Spring, 

Delaware, 

Fulton  Chain, 

Linlithgow, 

Constantia, 

Ogdensburg. 

The  State  Fair  Commission 

The  state  fair  commission  consists  of  seven  commissioners,  five  of 
whom  are  appointed  by  the  governor  for  terms  of  five  years  each.  The 
president  of  the  senate  and  the  commissioner  of  agriculture  are  ex-officio 
members  of  the  commission.  The  commission  is  authorized  to  hold  a 
state  fair  at  such  times  as  it  may  deem  proper,  and  make  or  amend  the 

126 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

rules  and  regulations  necessary  therefor;  appoint  and  remove  assistants 
and  employees ;  receive  all  moneys  payable  to  the  state  on  account  of 
such  fair  and  make  all  disbursements  therefrom,  and  also  from  any 
legislative  appropriations  for  the  state,  fair.  The  provisions  of  the  state 
finance  law  do  not  apply  to  the  state  fair  commission.  (See  report  on 
organization  and  functions,  pp.  317  to  322,  inclusive,  and  chart  GB  p. 
316). 

Experiment  Station  at  Geneva 

The  agricultural  experiment  station  at  Geneva  was  created  for  the 
purpose  of  promoting  agriculture  by  scientific  investigations  and  experi- 
ment. The  station  is  under  the  administrative  control  of  a  board  of  nine 
members  which  includes  the  governor  and  the  commissioner  of  agriculture 
as  ex-officio  members.  A  director  is  appointed  by  the  board  of  control 
who  exercises  personal  supervision  of  the  work  of  the  station.  (See 
report  on  organization  and  functions,  pp.  343  to  348  inclusive,  and  chart 
GGp345). 

Lack  of  Correlation  of  Related  Functions 

The  purpose  of  the  department  of  agriculture  as  indicated  in  the  pre- 
ceding paragraphs  is  primarily  the  promotion  of  agricultural  industry. 
There  are  however  certain  functions  now  provided  for  in  the  department 
of  agriculture  which  are  regulative  and  primarily  for  the  promotion  of 
public  health  rather  than  the  promotion  of  agriculture.  These  are  the 
protection  of  the  food  supply,  including  milk,  now  performed  by  the 
bureau  of  dairy  products,  and  the  prevention  of  diseases  of  animals  now 
under  the  supervision  of  the  bureau  of  veterinary  service.  These  func- 
tions are  more  fully  considered  in  the  chapter  on  promotion  of  public 
health. 

One  of  the  functions  of  the  department  of  agriculture  is  the  pro- 
motion of  animal  industry.  It  would  seem  that  the  function  of  protec- 
tion and  propagation  of  fish  and  game,  which  is  now  carried  on  by  the 
conservation  department,  is  very  closely  allied  to  work  which  is  carried 
on  in  part  by  the  department  of  agriculture. 

The  state  fair  commission  though  chiefly  concerned  with  the  holding 
of  a  state  fair  is  in  fact  performing  a  very  important  function  in  the 
promotion  of  agriculture  and  agricultural  industry.  Here  again  correla- 
tion of  the  promotive  and  educational  functions  of  the  state  fair  com- 
mission with  other  similar  and  closely  related  functions  would  be 
desirable. 

The  agricultural  experiment  station  is  performing  functions  pro- 
motive of  agricultural  industry  and  its  work  parallels  to  a  considerable 
degree  that  which  is  performed  by  various  bureaus  of  the  department 
of  agriculture  through  its  bureau  of  dairy  products,  its  bureau  of  horti- 

127 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

culture  and  its  bureau  of  chemistry.     Coordination  of  all  research  activi- 
ties under  a  single  technical  head  would  reduce  cost  and  improve  service. 

Need  for  Change  in  Tenure  of  Office  of  Commissioner  of  Agriculture 

Because  of  the  fact  that  the  commissioner  of  agriculture  is  appointed 
for  three  years  and  the  term  of  the  governor  is  only  two  years,  it  is 
possible  that  only  every  third  governor  can  control  the  appointment  of 
the  commissioner  of  agriculture.  For  example,  assuming  a  change  in 
the  governorship  every  two  years  the  first  incumbent  would  be  able 
through  the  commissioner  he  would  appoint,  to  shape  the  general  policy 
of  the  department  during  his  entire  administration.  The  second  incum- 
bent, however,  would  be  able  to  exercise  such  influence  only  during  the 
second  year,  or  last  half  of  his  administration,  and  the  third  incumbent 
would  be  confronted  throughout  his  entire  administration  with  a  hold- 
over commissioner  who  might  be  quite  out  of  sympathy  wath  the  plans 
and  the  ideals  of  the  governor. 

The  commissioner  of  agriculture  should  be  appointed  for  an  indefi- 
nite term  but  should  be  removable  by  the  governor  at  his  discretion. 
This  would  place  the  responsibility  for  the  appointment  of  the  commis- 
sioner and  the  policy  of  the  department  upon  the  governor,  where  it 
properly  belongs. 

Improved  Coordination  of  Functions  Within  the  Department  of  Agri- 
culture Suggested 

The  present  organization  of  the  department  of  agriculture  does  not 
provide  for  effective  coordination  of  related  functions  within  its  own 
organization,  as  is  evidenced  by  examination  of  chart  G  A  (page  299) 
of  the  report  on  organization  and  functions.  For  example,  the 
bureau  of  supervision  of  cooperative  associations,  the  bureau  of  farmers 
institutes  and  the  bureau  of  agricultural  statistics  are  all  performing 
functions  which  are  promotive  of  agricultural  industry  by  educational 
field  work  and  by  the  publication  and  distribution  of  information  of 
value  to  the  general  public  and  particularly  to  those  interested  in  the 
various  branches  of  agricultural  work.  In  the  interests  of  economy 
and  efficiency,  a  closer  coordination  of  these  bureaus  under  a  single  head 
is  suggested. 

Again  there  are  certain  functions  in  the  work  of  prevention  of 
animal  diseases  which  are  now  divided  among  several  bureaus  of  the 
department  of  agriculture.  For  example  the  bureau  of  veterinary  service 
is  concerned  chiefly  with  the  prevention  of  animal  diseases  and  the  pro- 
motion of  animal  husbandry,  while  the  bureau  of  horticulture  combines 
functions  promotive  of  horticulture  with  those  of  the  prevention  of 
diseases  of  bees.     Coordination  of  all  functions  having  to  do  with  the 

128 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

prevention  of  animal  diseases  and  the  propagation  of  useful  animal 
life  suggests  itself  as  a  next  step  in  improved  administrative  control. 

Inspection  service  in  the  department  of  agriculture  is  specialized 
throughout  the  various  bureaus.  Inspectors  of  the  bureau  of  dairy 
products  for  example  take  samples  of  dairy  and  food  products,  agri- 
cultural seeds,  fertilizers,  etc.,  for  analysis  by  chemists  assigned  to  their 
particular  division;  inspectors  of  the  bureau  of  horticulture  take  samples 
of  insecticides  for  analysis  by  the  chemists  attached  to  their  own  division 
of  work;  inspectors  of  the  bureau  of  butter  substitutes  take  samples 
of  butter  substitutes  for  analysis  by  the  chemists  attached  to  their  particu- 
lar division.  Closer  coordination  of  inspectional  work  under  a  single 
head  or  bureau  of  inspection  would  eliminate  probable  duplication  of 
work. 

The  chemists  of  the  department  of  agriculture  are  scattered 
throughout  the  state ;  five  in  Albany,  one  in  New  York,  two  in  Ithaca, 
one  in  Buffalo,  one  in  Canton.  Administrative  control  of  the  work  of 
chemists  is  therefore  made  difficult.  It  is  not  clear  that  the  work  of  all 
chemists  could  not  be  better  performed  from  a  central  laboratory  located 
perhaps  in  Albany,  or  at  the  experiment  station  in  Geneva,  where  all 
laboratory  facilities  for  analysis  and  research  are  available.  This  is  the 
plan  adopted  by  the  state  department  of  health  and  it  is  found  to  work 
well. 

Staffs  Advisory  Council  Suggested 

At  present  the  various  agricultural  schools  though  performing  func- 
tions promotive  of  agricultural  industry  are  not  brought  into  as  close 
contact  with  the  work  of  the  department  of  agriculture  as  is  desirable. 
The  creation  of  a  staff  advisory  council  to  the  commissioner  of  agricul- 
ture, composed  of  some  or  all  of  the  heads  or  directors  of  the  agricutural 
schools  would  serve  to  keep  the  department  in  touch  with  the  agricul- 
tural needs  and  interests  in  the  various  localities  and  with  the  develop- 
ment of  a  state-wide  program  for  educational  work.  Such  an  advisory 
staff  should  act  as  a  legislative  body  in  the  preparation  and  promulga- 
tion of  rules  and  regulations  for  the  conduct  of  the  work  of  the  depart- 
ment of  agriculture. 

Part  II. — Organization  for  the  Administration  of  Public  Works 
Functions 

The  public  works  activities  of  the  state  may  be  defined  as  the  plan- 
ning, construction,  maintenance  and  operation  of  public  buildings,  high- 
ways and  canals,  and  the  conservation  of  natural  resources  insofar  as  they 
concern  engineering  supervision  of  the  property  of  the  state. 

129 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Organisations  Nozo  Carrying  un  These  Functions 

At  present  the  public  works  functions  of  the  state  are  being  carried 
on  by  the  following  organizations : 

Two  legislative  commissions pages  18  and  19* 

The  Department  of  Highways "  690 — 715 

The  Department  of  Buildings "  717 — 721 

The  Department  of  Public  Works  (canal  operation) .  "  678 — 690 

The  state  engineer "  651 — 668 

The  canal  board "  669 

The  commissioners  of  the  canal  fund "  669 

The  state  architect "  671—678 

The  trustees  of  public  buildings "  717 

The  Palisades  Interstate  Park  Commission  (part)..  .  .  "  751 

The  Bronx  Parkway  Commission  (part) .  "  723 — 724 

The  conservation  department  (part) "  727 — 741 

The  iV(7tc'  York  Bridge  and  Tunnel  Commission 

This  commission  is  composed  of  four  appointed  commissioners  and 
the  commissioner  of  bridges  of  the  city  of  New  York.  Three  of  the 
commissioners  are  appointed  by  the  governor  and  one  by  the  mayor 
the  city  of  New^  York.  The  duties  of  this  commission  are  to  confer 
v/ith  the  governor  and  the  legislature  of  New  Jersey  for  the  purpose  of 
securing  the  passage  of  an  act  by  the  legislature  of  that  state  providing 
for  the  appointment  of  a  joint  commission  under  proper  legislation 
of  both  states  to  purchase  the  necessary  land  and  water  rights,  and  to 
secure  necessary  federal  consent  for  the  construction  of  one  or  more 
bridges  over  the  Hudson  River.  This  commission  is  also  charged  with 
the  consideration  of  tunnel  communication  between  the  two  states. 

Commission  to  Investigate  Port  Conditions  and  Pier  Extensions  in  Neiv 
York  Harbor 

This  commission  consists  of  three  commissioners  appointed  by  the 
governor  to  act  jointly  with  similar  commissioners  of  the  United  States 
and  the  state  of  New  Jersey  to  investigate  port  conditions  and  pier  ex- 
tensions in  New  York  Harbor,  and  to  recommend  proper  policies  to  be 
pursued  for  the  best  interests  of  the  entire  port  of  New  York.  The 
commissioners  serve  without  compensation. 

The  Department  of  Highways 

This  department  is  under  the  executive  supervision  of  a  commissioner 
appointed  by  the  governor  for  a  term  of  three  years,  and  is  charged  with 

*  The  page  numbers  refer  to  the  report  on  the  organization  and  functions  of 
the  state  government. 

130 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

the  construction  and  maintenance  of  all  state  roads  and  county  highways 
and  the  supervision  of  the  construction  and  maintenance  of  town  high- 
ways. 

Trustees  of  Public  Buildings 

The  trustees  of  public  buildings  have  supervision  over  the  capitol 
and  other  buildings  of  the  State  at  Albany.  They  revise  all  contracts 
for  construction  and  repair  before  award.  The  board  of  trustees  is 
composed  of  (a)  the  governor;  (b)  the  lieutenant  governor;  and  (c) 
the  speaker  of  the  assembly — serving  without  extra  compensation. 

Department  of  Ptiblic  Buildings 

The  department  of  public  buildings  is  under  the  direction  and  con- 
trol of  the  trustees  of  public  buildings.  This  department  is  charged 
with  the  care  and  maintenance  of  the  geological  hall,  the  state  hall,  the 
capitol  and  the  executive  mansion  in  Albany,  and  the  state  house  at 
Kingston,  and  the  maintenance  and  operation  of  the  capitol  power  house, 
including  the  supplying  of  heat,  light  and  power  to  the  educational  build- 
ing. 

Department  of  Public  Works 

This  department  is  under  the  supervision  of  a  superintendent  of 
public  works  appointed  by  the  governor  by  and  with  the  advice  and  con- 
sent of  the  senate,  to  hold  ofTice  during  the  term  of  the  governor  and  is 
charged  with  the  execution  of  all  laws  relating  to  the  repair,  navigation, 
construction  and  improvement  of  canals,  except  so  far  as  such  construc- 
tion or  improvement  may  be  confided  by  statute  to  the  state  engineer  and 
surveyor.  The  office  of  superintendent  of  public  works  and  the  general 
duties  of  the  office  are  prescribed  in  the  constitution. 

Department  of  the  State  Engineer 

The  office  of  state  engineer  and  the  general  duties  of  this  office  are 
implied  in  the  constitution.  The  state  engineer  is  charged  with  the 
supervision  of  the  state  topographical  and  hydrographical  surveys,  the 
examination  and  maintenance  of  the  state  boundary  line  monuments,  the 
making  of  surveys  in  defense  of  claims  against  the  state  and  such  other 
engineering  duties  as  may  be  prescribed  by  law.  The  improving  of  the 
canal  system  of  the  state  and  the  construction  of  the  barge  canal  and 
terminals  have  been  placed  under  the  supervision  of  the  state  engineer 
by  statute. 

Canal  Board 

The  canal  board  consisting  of  the  commissioners  of  the  canal  fund, 
together  wHh    (a)    the   state   engineer  and  surveyor;    (b)    the   superin- 

131 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

tendent  of  public  works;  and  (c)  the  attorney  general,  has  jurisdiction 
over  the  fixing  and  changing  of  the  canal  land  boundaries ;  determines 
what  canal  lands  shall  be  sold,  exchanged  or  abandoned ;  investigates  all 
transactions  connected  with  canals ;  examines  and  approves  or  disap- 
proves canal  plans  and  estimates  submitted  by  the  state  engineer;  con- 
trols the  sale  of  surplus  water  of  the  canals  or  feeder  creeks ;  grants 
permits  for  the  erection  of  buildings  on  canal  land  for  commercial  or 
manufacturing  purposes ;  and  investigates  charges  against  canal  officials. 

The  Commissioners  of  the  Canal  Fund 

The  commissioners  of  the  canal  fund  form  an  ex-officio  board,  com- 
posed of  (a)  the  lieutenant  governor;  (b)  the  secretary  of  state;  (c)  the 
comptroller;  (d)  the  treasurer;  and  (e)  the  attorney  general.  It  is 
charged  with  the  supervision  and  management  of  the. canal  fund;  makes 
advances  to  the  superintendents  of  repairs  in  the  department  of  public 
works  and  may  borrow  money  for  canal  purposes  when  authorized. 

Department  of  Architecture 

This  department  is  under  the  direction  of  the  state  architect  ap- 
pointed by  the  governor  by  and  with  the  advice  and  consent  of  the  senate, 
for  a  term  of  three  years  and  is  charged  with  the  preparation  of  draw- 
ings and  specifications  and  the  letting  of  contracts  for  the  construction, 
alteration  or  improvement  of  all  state  buildings  with  the  exception  of 
armories,  school  buildings  and  buildings  under  the  jurisdiction  of  the 
trustees  of  public  buildings.  The  work  in  progress  is  supervised  by  the 
inspectors  of  the  department.  Progress  summaries  of  work  done,  pre- 
pared by  the  inspectors,  are  used  as  a  basis  for  partial  payments  to  the 
contractors.  By  virtue  of  special  legislation  or  special  requests  from 
the  departments  or  boards  in  charge,  the  state  architect  often  assumes 
supervision  over  the  construction,  alteration  or  improvement  of  buildings 
exempted  from  the  arbitrary  provisions  of  the  general  state  architects' 
law. 

Palisades  Interstate  Park  Commission 

This  commission  was  organized  to  select  and  locate  such  lands 
within  specified  limits  as  may  be  proper  and  necessary  to  be  reserved  for 
the  purpose  of  establishing  a  state  park,  and  to  acquire,  maintain  and 
make  available  for  use  as  a  public  park,  lands  so  located.  The  commis- 
sioners are  appointed  by  the  governors  of  the  states  of  New  York  and 
New  Jersey. 

Conservation  Department 

The  division  of  lands  and  forests,  and  the  division  of  inland  waters 
€,if  the  conservation  department  are  charged  with  the  preservation  and 

132 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

protection  of  public  lands,  forests  and  inland  waters  not  under  the  con- 
trol of  the  United  States  government. 

Bronx  Parkzvay  Commission 

This  commission  consisting  of  three  commissioners  appointed  by  the 
governor  by  and  w^ith  the  advice  and  consent  of  the  senate  for  a  term  of 
five  years  is  empowered  to  examine,  survey  and  acquire  lands  for  the 
purpose  of  establishing  a  public  park  in  the  borough  of  the  Bronx,  New 
York  City,  and  to  prevent  the  pollution  of  the  Bronx  River.  One-fourth 
of  the  expenses  so  incurred  are  paid  by  Westchester  County  and  three- 
fourths  by  the  city  of  New  York. 

Constitutional  Restrictions  on  Executive  Personnel 

In  organizing  a  works  department  one  of  the  essential  rec^uirements 
is  to  provide  for  engineering  talent.  The  position  of  state  engineer  is 
one  which  should  be  held  by  a  highly  trained,  technical  man  who  desires 
to  make  public  service  a  career.  The  present  constitution  provides  for 
the  election  of  a  state  engineer  for  a  term  of  two  years,  and  further  pro- 
vides for  some  of  the  general  duties  of  this  officer.  Arguments  in 
support  of  making  the  state  engineer  elective  have  been  numerous,  but  the 
weakness  of  such  a  provision  is  obvious  to  those  familiar  with  the  admin- 
istration of  public  offices.  Briefly  some  of  the  objections  may  be  stated 
as  follows : 

1.  It  is  impossible  to  correlate  the  different  parts  of  the  admin- 

istration when  the  heads  of  some  of  the  departments  are 
made  independent  of  the  governor 

2.  It   is   impossible   to   obtain   eft"ective   administration   within   a 

department  and  especially  of  a  highly  technical  one  like 
public  works  when  the  executive  in  charge  of  most  of  the 
construction  work  is  likely  to  be  changed  every  two  years 
and  in  the  meantime  is  subjected  to  the  disrupting 
influences  of  past  political  promises  and  an  approaching 
political  campaign 

3.  It  is  difficult  to  secure  candidates  technically  qualified  for  the 

highest  engineering  positions  of  the  state  who  would  be 
willing  to  undergo  the  irritation  and  uncertainty  of  a 
political  campaign.  Engineers  of  the  quality  needed  for 
the  office  of  state  engineer  are  too  much  in  demand  in 
other  places  to  submit  to  the  annoyances  and  inconveni- 
ences of  a  campaign  for  votes  and  which  offers  nothing 
but  small  honor,  smaller  salary  and  a  short  tenure 


133 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

4.  The  election  of  the  state  engineer,  wholly  independent  of  the 
governor,  must  of  necessity  relieve  the  governor  from 
individual  responsibility  for  the  administration  of  the 
public  works  activities  under  the  state  engineer's  super- 
vision. Whatever  related  responsibility  there  is  comes 
from  the  fact  that  the  governor  and  the  state  engineer 
are  usually  of  the  same  political  party.  Notwithstand- 
ing the  fact  that  under  the  present  organization  the 
department  of  the  state  engineer  is  practically  a  separate 
autocratic  government,  the  governor,  through  his  appoin- 
tive officials,  is  held  responsible  for  working  with  what 
the  state  engineer  provides.  What  has  been  accomplished 
in  the  past  in  coordinating  the  public  works  activities 
and  engineering  service  of  the  state  has  been  accom- 
plished in  spite  of  the  constitution  rather  than  on  accouni 
of  it 

Legislative  Restrictions  on  the  Selection  of  Executive  Personnel 

Attention  has  already  been  called  to  the  legislative  restrictions  in  the 
selection  of  executive  personnel.  In  the  department  of  highways,  the 
department  of  architecture,  and  in  the  conservation  commission  the  chief 
executives  are  appointed  for  definite  terms,  all  of  which  are  longer  than 
the  two-year  term  of  the  governor,  which  means  that  certain  governors 
have  no  appointive  rights  in  three  of  the  important  departments  of  the 
state.  This  would  not  be  so  important  if  these  functions  were  all 
brought  into  one  works  department  and  means  were  provided  whereby 
the  governor,  as  the  chief  executive  of  the  state  and  directly  responsible 
to  the  people  for  the  administration  of  all  of  the  state  departments, 
could  assign  as  vice-governor  someone  who  would  act  as  his  direct  repre- 
sentative in  supervising  the  professional  heads  of  these  technical  organi- 
zations. But,  as  at  present  organized,  the  state  governmental  machinery 
does  not  provide  any  agency  whereby  the  governor  may  impress  his 
official  personality  or  his  responsibility  for  the  execution  of  state  policies 
on  the  actions  of  what  are  regarded  as  his  departments,  except  through 
the  appointment  of  the  departmental  executives.  Not  having  any  means 
of  enforcing  discipline,  he  cannot  insist  on  cooperation  between  these 
related  agencies. 

Constitutional  Restrictions  Which  Prevent  the  Development  of  Efficient 
Organisation  and  Management 
Perhaps  the  most  fundamental  defect  in  the  present  public  works 
machinery  of  the  state  government  is  the  lack  of  coordination  of  duties 
and  the  consequent  lack  of  cooperation  in  management  of  the  various 
public  works  affairs.     A  most  conspicuous  example  of  this  condition  is 

134 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

to  be  found  in  the  relation  of  the  state  engineer  and  the  superintendent 
of  pubHc  works.  The  state  engineer  is  given  charge  of  the  construc- 
tion of  the  new  barge  canal  and  in  the  past  he  has  usually  been  charged 
with  all  construction  of  the  state's  canal  system,  and  most  of  the  impor- 
tant maintenance  and  reconstruction  work.  The  superintendent  of  public 
works,  an  appointee  of  the  governor,  is  charged  by  the  constitution  with 
the  operation  and  maintenance  of  these  same  waterways  which  the 
state  engineer  has  constructed.  Thus  an  appointee  of  the  governor  is 
responsible  for  operating  and  maintaining  economically  and  efficiently 
a  canal  system  handed  bodily  over  to  his  department  by  the  state  engi- 
neer, over  whom  no  one  in  the  state  administration  has  the  slightest 
administrative  control.  This  condition  is  incompatible  with  good  man- 
agement as  is  evidenced  by  the  fact  that  it  is  not  found  in  great  privately 
owned  and  operated  public  service  enterprises.  If  it  were,  it  would  mean 
that  the  operating  department  of  a  railroad  would  be  required  to  accept 
anything  that  the  purchasing  agent  or  the  maintenance  department  might 
hand  it,  in  the  way  of  rolling  stock  or  motive  power. 

No  Organisation  Available  for  Constructive  Planning 

With  15  boards,  commissioners,  officers  and  departments  engaged  in 
handling  various  parts  of  the  public  works  problem  of  the  state  and  with 
certain  of  these  executives  responsible  to  the  governor,  others  elected  by 
the  people,  others  appointed  by  special  boards,  others  ex-officio,  etc.,  it  is 
impossible  to  formulate  any  sort  of  a  constructive  public  works  program 
which  will  coordinate  all  of  the  engineering  and  general  public  service  ac- 
tivities of  the  state.  Whatever  may  be  adopted  as  a  principle  of  control, 
whether  executive  or  legislative,  the  present  organization  is  chaotic, 
and  the  various  parts  are  misfits.  Engirreertng  problems  cannot  be  solved' 
quickly,  and  can  never  be  solved  effectively  without  careful  preliminary 
planning.  The  only  coordinating  factor  now  to  be  found  in  the  state 
organization  is  in  the  state  engineer  as  an  individual,  due  to  the  fact  that 
he,  as  an  individual,  has  been  placed  on  most  of  the  boards  and  commis- 
sions having  to  do  with  special  problems.  Since  the  abolition  of  the  high- 
ways commission,  however,  there  is  no  organic  provision  for  cooperation 
of  any  nature  between  the  highways  department  and  the  general  engineer- 
ing department  of  the  state.  There  is  no  organic  provision  for  cooperation 
between  the  department  of  architecture  and  the  state  engineer's  depart- 
ment, although  such  cooperation  would  unquestionably  increase  the  effi- 
ciency of  the  engineering  service  of  the  state  architect's  department.  There 
is  no  organic  provision  for  cooperative  working  relation  between  the  state 
engineer's  department  and  the  department  of  public  buildings,  or  the 
trustees  of  public  buildings,  and  quite  inadequate  provisions  for  coordina- 
tion of  effort  between  the  hydrographic  and  general  surveying  corps  of 
the  state  engineer's  department  and  the  work  of  the  conservation  com- 

135 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

mission,  particularly  as  this  latter  is  concerned  with  the  conservation  of 
water  power. 

It  cannot  be  expected  that  either  economical  or  efficient  administra- 
tion of  the  public  works  affairs  will  result  where  the  heart  of  the  public 
works  organization  of  the  state  is  wholly  independent  of  every  other 
organization  engaged  in  related  work.  Best  results  can  never  be  obtained 
until  the  services  of  the  engineers  of  the  state  engineer's  department  are 
made  available  for  use  in  every  other  department  of  the  state  government 
requiring  engineering  service.  That  such  a  coordination  is  not  possible 
at  the  present  time  is  an  indictment  of  both  the  constitution  and  statute 
law  of  the  state. 

Continuity  of  Policy  in  Management  Impossible 

It  has  already  been  pointed  out  that  the  election  of  the  state  engineer 
makes  it  impossible  to  secure  continuity  of  policy  and  program  in  the 
management  of  that  department.  This  criticism  is  none  the  less  true  of 
the  other  departments  and  other  public  works  agencies  of  the  state, 
although  due  to  other  causes,  the  most  important  of  which  is  that  a  clear 
distinction  has  not  been  made  between  the  professional  or  technical  heads 
of  departments  and  bureaus,  and  administration  appointments.  It  has 
been  found  that  the  establishment  of  a  definite  term  of  years  extending 
over  a  period  greater  than  the  two-year  term  of  the  governor  has  been 
of  practically  no  effect.  Threatened  '*  ripper  "  legislation  has  either  forced 
resignations,  or  when  carried  out  through  providing  for  an  apparent  re- 
organization of  the  department,  secured  what  seemed  to  be  desirable  in  the 
way  of  political  appointments.  Every  change  in  politics  in  Albany  has 
been  followed  by  an  epidemic  of  "  ripper  "  legislation  and  removals  upon 
charges.  The  primary  reason  for  much  of  this  legislation  and  the  un- 
scrupulous way  in  which  departments  have  been  reorganized,  broken 
up  and  readjusted,  merely  to  make  additional  places  for  political 
appointments,  is  to  be  found  in  fundamental  constitutional  defects 
adverted  to.  The  following  list  of  highway  commissioners  is  typical  of 
changes  in  the  executive  personnel  of  these  departments. 

1898  Campbell  W.  Adams. 

1899  Edward  A.  Bond. 

1900  Edward  A.  Bond. 

1901  Edward  A.  Bond. 

1902  Edward  A.  Bond. 

1903  Edward  A.  Bond. 

1904  Henry  A.  Van  Alstyne. 

1905  Henry  A.  Van  Alstyne. 

1906  Henry  A.  Van  Alstyne. 

1907  Frederick  Skene. 

136 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

1908  Frederick  Skene. 

1909  Commission  of   3  appointed  by  Governor  Hughes. 

1910  Commission  of  3  appointed  by  Governor  Hughes. 

1911  Wm.  H.  Cathn,  Oct.  19,  1911. 

C.  Gordon  Reel,  Superintendent  of  Highways. 

1912  C.  Gordon  Reel,  Superintendent  of  Highways. 

1913  C.  Gordon  Reel, 

J.  H.  Sturtevant,  acting  May,  1913. 
J.  H.  Carlisle,  Commissioner. 

1914  J.  H.  Carlisle,  Highway  Commissioner. 

What  is  need  is  an  organization  which  will  provide  certain  super- 
visory executive  positions  for  administrative  purposes  and  at  the  same 
time  protect  the  professional  and  technical  heads  of  the  suborganization 
units  in  office. 

Defects  in  Organization  of  the  Architectural  Service 

In  pointing  to  defects  in  the  organization  of  the  present  department 
of  architecture  due  consideration  has  been  given  to  the  fact  that  some 
agency  must  be  provided  for  rendering  architectural  service  to  the  various 
departments  of  the  state  government.  The  difificulty  with  the  present 
architectural  organization  is  that  it  is  a  highly  centralized  organization 
which  without  authority  is  useless  and  with  authority  will  be  in  continual 
disagreement  with  the  architects  retained  directly  by  the  various  depart- 
ments of  the  state.  Innumerable  delays  in  the  completion  of  the  state's 
buildings  may  be  charged  directly  to  an  almost  continuous  condition  of 
friction  between  the  state  architect's  department  and  the  various  insti- 
tutions and  other  similar  agencies  of  the  state  government. 

The  present  department  has  assumed  an  executive  relation  to  all 
work  coming  within  its  jurisdiction.  It  has  not,  on  the  other  hand,  done 
anything  in  the  way  of  establishing  group  unit  construction  standards 
for  various  kinds  of  institutions.  This  is  a  kind  of  the  work  to  be  done 
by  a  form  of  organization  adapted  to  it  before  ultimate  economy  in  the 
construction  of  the  various  institutional  buildings  is  to  be  obtained.  It 
is  not  probable  that  with  the  present  organization  much  attention  will 
be  given  to  the  development  of  group  unit  construction  standards.  Such 
work  is  primarily  concerned  with  the  administration  of  institutions 
and  naturally  seems  of  greater  importance  to  the  executives  in  charge  of 
the  carrying  on  of  the  institutional  work  than  to  a  department  charged 
merely  with  designing  and  supervision  of  construction.  The  department 
of  architecture  as  now  organized  was  established  to  provide  a  central 
administrative  agency  for  coordinating  the  various  architectural  needs  of 
the  state,  with  the  expectation  that  the  establishment  of  architectural 
standards  would  be  its  chief  work,  but  the  department  of  architecture 

137 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

has  given  itself  over  almost  entirely  to  the  executive  supervision  of  the 
building  construction  ordered  by  the  various  state  departments. 

Department  of  Buildings 

One  of  the  most  conspicuous  examples  of  the  failure  of  ex-officio 
board  administrations  is  to  be  found  in  the  department  of  buildings.  This 
department  is  ostensibly  under  the  supervision  of  the  governor,  the  lieu- 
tenant governor  and  the  speaker  of  the  assembly,  who  constitute  the 
trustees  of  buildings.  In  immediate  supervision  of  the  force  is  a  superin- 
tendent of  buildings  who,  being  responsible  to  an  ex-officio  board  com- 
posed of  elected  officials  having  many  other  and  more  important  duties, 
is  in  fact  responsible  to  no  one.  The  department  of  buildings  is  notori- 
ously the  stronghold  of  the  most  questionable  kind  of  political  adminis- 
tration. The  condition  of  the  public  buildings  in  Albany  over  which  the 
department  has  jurisdiction  is  indicative  of  its  inefficiency.  Unless  some- 
thing be  done  to  establish  executive  responsibility  for  this  very  impor- 
tant work,  little  improvement  can  be  expected  and  executive  responsi- 
bility cannot  be  obtained  by  means  of  an  ex-officio  board. 

Not  a  little  of  the  delay  experienced  in  handling  the  contracts  for 
the  repair  and  maintenance  of  the  public  buildings  in  Albany  may  be 
charged  directly  to  the  fact  that  the  trustees  of  public  buildings  must 
sign  all  official  papers  in  connection  therewith.  During  the  summer 
months  the  state  architect  has  found  it  necessary  to  employ  a  special 
messenger  to  obtain  the  signatures  of  the  members  of  the  board  to 
official  papers. 

Engineering  Service  in  the  Conservation  Commission 

There  are  two  divisions  in  the  Conservation  Department  which  are 
engaged  on  work  similar  if  not  identical  with  that  carried  on  by  the 
state  engineer  or  the  department  of  public  works,  i.  e.,  the  division  of 
inland  waters  and  the  division  charged  with  the  inspection  of  docks 
and  dams.  The  personnel  of  these  two  divisions  is  made  up  of  engineers 
and  is  concerned  chiefly  with  the  conservation  of  the  water  power  of 
the  state  and  the  apportionment  of  water  power  and  water  supply  to 
various  cities,  towns,  villages  and  private  corporations.  The  inspection  of 
state  dams  not  connected  with  the  barge  canal  system  is  under  the  juris- 
diction of  this  department.  There  are  only  two  dams  in  this  category  and 
the  inspection  of  these  requires  the  services  of  special  inspectors.  In  the 
department  of  public  works  and  the  state  engineer's  department  at  the 
present  time  there  are  more  than  one  thousand  employees  engaged  in  the 
construction,  maintenance  and  operation  of  the  barge  canal  system,  of 
which  the  construction  and  maintenance  of  dams  and  retaining-  walls  are 
very  important  factors.  It  would  seem  to  be  inevitable  duplication  of 
service  to  provide  for  special  inspectors  of  other  dams  in  the  conservation 

138 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

department  where  the  engineering  and  supervision  must  either  be  dupli- 
cated or  neglected.  The  work  of  the  engineering  corps  of  the  division 
of  inland  waters  parallels  much  of  the  work  of  the  state  engineer  in  the 
provision  of  adequate  water  supply  for  the  barge  canal.  Moreover,  the 
various  services  maintained  by  the  state  engineer  through  the  hydro- 
graphic  corps  parallels  much  of  the  routine  work  of  the  engineering  corps 
of  the  division  of  inland  waters.  Such  a  decentralization  of  the  engi- 
neering supervision  of  the  state's  water  sheds  and  water  supply  is  ob- 
viously improper  and  one  which  prevents  the  securing  of  ultimate  effi- 
ciency in  the  carrying  on  of  the  public  works  and  engineering  functions 
of  the  state. 

Part  III. — Organization  for  Administration  of  Public  Education 
Responsibility  for  the  administration  of  the  educational  functions  of 
the  State  of  New  York  is  laid  upon  the  regents  of  the  University  of  the 
State  of  New  York  by  the  constitution  and  legislation  organizing  them 
as  a  separate  corporate  entity.  This  body  is  composed  of  twelve  mem- 
bers, each  elected  by  the  legislature  for  a  term  of  twelve  years,  one 
regent  being  elected  each  year.  Acting  as  a  separate  entity,  the  regents 
have  the  legislative  direction  of  the  department  of  education.  This 
department  is  "  charged  with  the  general  management  and  supervision 
of  all  public  schools  and  all  the  educational  work  of  the  state,  including  the 
operations  of  the  University  of  the  State  of  New  York."*  The  objects 
of  the  University  of  the  State  of  New  York,  as  described  by  law,  are 
'■  to  encourage  and  promote  education,  to  visit  and  inspect  its  several 
institutions  and  departments,  to  distribute  or  expend  or  administer  for 
them  such  property  and  funds  as  the  state  may  appropriate  therefor, 
or  as  the  university  may  own  or  hold  in  trust  or  otherwise,  and  to  perform 
such  other  duties  as  may  be  entrusted  to  it."t 

Executive  Functions  of  Department  of  Education. 

The  executive  functions  of  the  department  are  carried  out  by  the 
commissioner  of  education,  who  is  appointed  by  the  board  of  regents  to 
"  serve  during  the  pleasure  of  the  board."  This  officer  is  also  the 
president  of  the  University  of  the  State  of  New  York — i.  e.,  of  the  whole 
educational  and  regulative  system  that  comes  under  the  jurisdiction  of 
the  regents.  With  the  approval  of  the  regents  the  commissioner  appoints 
assistant  commissioners,  directors  and  chiefs  of  divisions  within  the  de- 
partment. 

Associated  with  him  in  the  administration  of  this  department  are 
three  assistant  commissioners  assigned  respectively  to  "  elementary " 
education,    "  secondary  "    education,    and    "  higher  "    education.      These 


*  See   educational   law,   paragraph   20. 
t  See  educational   law,  paragraph  40. 


139 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

commissioners,  while  performing  advisory  functions  to  the  commissioner 
and  board,  are  also  the  heads  of  their  respective  activities  in  the  depart- 
ment. Over  collateral  functions  there  are  tw^o  directors,  one  of  the  state 
library  and  one  of  the  state  science  work  and  museum.  The  details  of 
this  educational  work  are  administered  under  thirteen  chiefs  of  divisions 
in  charge  of,  respectively,  administration,  attendance,  educational  exten- 
sion, examination,  history,  inspections,  law,  library  school,  public  records, 
school  libraries,  statistics,  visual  instruction  and  vocational  schools. 

(onditio)is    Unfavorable   to   LocaU::ation  and  Enforcement   of  Respon- 
sibility 
When  viewed  from  the  standpoint  of  establishing  responsibility  to  the 
electorate  and  within  the  department  there  are  several  features  of  the 
present  organization  which  deserve  consideration. 

Method  of  Selecting  the  Board  of  Regents 

The  existing  provision  that  the  members  of  the  board  of  regents 
shall  be  chosen  one  each  year  by  the  state  legislature  makes  impossible  the 
enforcement  of  responsibility  for  board  functions  by  appeal  to  the  elector- 
ate, except  when  an  issue  is  raised  of  sufificient  importance  to  cause  the 
electorate  to  enforce  their  will  through  many  successive  years  of  legisla- 
tive action.  That  is,  it  is  made  difficult  to  get  a  definite  issue  before  the 
legislature,  or  the  people,  unless  such  an  issue  is  presented  by  the  com- 
missioner after  a  division  in  which  the  board  fails  to  support  him. 
This  might  work  quite  effectively  if  there  were  any  way  of  impressing 
the  will  of  a  majority  on  the  board  except  by  making  the  issue  a  partisan 
measure  which  could  be  successful  only  after  a  period  of  not  less  than 
six  years,  the  period  required  to  reconstitute  the  board  so  that  a  majority 
would  represent  the  policy  desired. 

Experience  has  shown  that  of  all  methods  for  selecting  public 
officers  election  by  such  a  numerous  body  as  the  legislature  and  one  whose 
membership  represents  local  interests  only,  is  the  least  successful  in 
securing  popular  scrutiny  and  attracting  state  wide  interest.  Under  such 
a  system  no  one  feels  any  responsibility  at  all.  Whatever  may  be  said 
in  favor  of  legislative  ratification,  the  desirability  of  locating  responsibility 
for  nomination  is  generally  agreed  to  by  educational  authorities  as  well  as 
administrative  experts. 

But  assuming  that  it  is  thought  desirable  for  historic  or  other  reasons 
to  retain  the  legislative  appointment  of  the  board  of  regents  as  a  legisla- 
tive, reviewing  and  approving  body,  then  in  this  case  the  question  may 
be  raised  whether  the  commissioner  of  education,  as  the  head  of  the 
administration  of  the  department,  should  not  be  appointed  by  the  governor 
with  an  indefinite  tenure,  but  removable  at  wnW — thereby  putting  the  gov- 
ernor in  a  position  to  enforce  responsiveness  to  public  will,  and  making 

140 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

the  commissioner  a  member  of  the  cabinet.  This  conclusion,  of  course, 
rests  on  the  assumption  that  the  constitution  will  provide  for  a  responsible 
chief  executive.  If  it  does  not  there  will  be  no  cabinet,  and  it  would  not 
be  wise  to  select  the  commissioner  of  education  merely  for  central 
executive  control. 

Multiplicity  of  Lines  of  Control  in  the  Department  of  Education 

Considered  as  a  separate  corporation,  there  is  within  the  depart- 
ment no  well  defined  grouping  of  functions.  The  principle  of  grouping 
by  school  grades  (elementary,  secondary  and  higher)  is  applied.  There 
are  at  the  present  time  eighteen  heads  of  organization  units,  i.  e.,  assistant 
commissioners,  directors,  and  chiefs  of  divisions,  who  are  theoretically 
responsible  to  the  commissioner  of  education.  A  number  of  the  organiza- 
tion units  have  double  responsibility,  that  is,  to  the  commissioner  and  to 
an  assistant  commissioner.  It  would  appear  that  as  new  functions  have 
been  undertaken  from  time  to  time,  no  adequate  eft'ort  has  been  made  to 
adjust  them  accurately  to  the  work  i)reviously  carried  on.  Nevertheless 
it  is  fair  to  say  that  since  the  publication  of  the  report  on  organization  and 
functions  several  changes  have  l)een  made  looking  to  a  somewhat  higher 
centralization  of  work. 

While  it  is  not  easy  to  determine  just  how  many  deputy  or  assistant 
commissioners  immediately  responsible  to  the  commissioner  there  should 
be,  or  to  delimit  exactly  the  field  assigned  to  each,  it  is  clear  that  efficient 
administration  requires  the  drawing  together  of  lines  of  control  at  the 
top.  Some  of  the  leading  states  in  the  Union  have  established  five  great 
divisions  of  work  immediately  under  the  supervision  of  the  commissioner : 
one  for  elementary  education,  one  for  secondary  education,  one  for  higher 
education,  one  for  vocational  education,  and  one  for  research  and  statis- 
tics. Where  this  is  done  in  a  systematic  manner,  the  subdivisions  of 
work  are  grouped  under  the  proper  deputies  according  to  functional 
relations.  Experience  would  seem  to  show  however  that  the  organization 
of  the  department  should  not  be  too  rigid,  but  that  the  commissioner  of 
education  should  be  allowed  to  assign  to  each  of  the  deputy  commission- 
ers responsibility  for  such  things  as  may  seem  to  him  to  make  for  the 
efficiency  of  the  whole  department. 

Lack  of  Centralisation  of  Collateral  Educational  Functions 

Turning  to  the  broader  principle  of  correlation  of  all  educational 
functions  under  state  control  and  especially  those  which  are  in  whole  or 
in  part  supported  by  the  state,  there  are  a  number  of  institutions  and 
activities  of  the  state  which  are  properly  denominated  as  educational 
that  are  not  subject  to  effective  control  by  the  department  of  education. 
These    are    administered     by     independent    boards     or    commissioners 

141 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

appointed  according  to  varying  methods  which  estabhsh  no  responsibility 
anywhere.     Such  institutions  and  activities  are  as  follows : 

Agricultural  colleges  and  schools 

New  York  State  Nautical  School 

Board  of  Geographic  Names 

Commission   for  the  Blind 

Instruction  of  children  in  the  state  institutions  for  the  delinquent 
and  dependent 

Board  of  Law  Examiners 

Board  of  Embalming  Examiners 

State  School  for  Ceramics  and  Clay  Working — Alfred  Uni- 
versity 

It  would  seem  reasonable  to  assume  that  for  the  sake  of  efficient 
administration  and  control,  all  educational  functions  which  are  supported 
by  public  funds  should  be  under  the  supervision  of  the  Department 
of  Education  or  at  least  be  subject  to  the  inspection  of  that  Department. 
This  is  especially  true  in  view  of  the  provisions  within  the  department 
to  take  care  of  these  additional   functions   and  activities. 

Lack  of  Machinery  for  the  Development  of  Work  and  Efficiency  Pro- 
grams 

Where  an  executive  officer,  like  the  commissioner  of  education,  is 
charged  with  such  administrative  responsibilities  for  activities,  under  his 
control,  the  absence  of  a  free  office  staff  for  investigation,  report,  and 
the  preparation  of  constructive  programs  cripples  the  efficiency  of  the 
head.  The  need  for  co-operation  and  advice  which  an  executive  of  broad 
responsibility  feels,  can  be  supplied  only  when  provision  is  made  for  an 
executive  board  on  the  one  hand,  made  up  of  heads  of  branches  of  work, 
and  for  an  independent  staff  on  the  other.  The  executive  board  advisers 
could  be  made  most  effective  only  by  a  regrouping  of  functions  under  a 
few  deputies  or  assistant  commissioners  who  in  turn  would  be  able  to 
have  reasonable  freedom  in  the  assignment  of  duties  and  a  perspective  of 
related  experience  gained  through  direction  and  contact  within  their  divi- 
sions. The  machinery  for  making  investigations,  analyzing  departmental 
policies,  and  defining  programs  of  work  within  the  department  might 
thus  be  at  the  commissioner's  command  and  the  consequent  tendency  to 
bring  debatable  questions  to  the  chief  executive  would  secure  the  com- 
bined and  specialized  talent  of  the  staff  as  well  as  of  line  advisers. 

Problems  of  State  Educational  Policy 

In  addition  to  the  problems  of  central  educational  administration 
there  are  a  number  of  questions  which,  though  local  in  their  character, 

142 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

have   a   state-wide    interest   and    deserve   serious    consideration    at    this 
time.     Among  these  may  be  enumerated  the  following : 

1.  What  is  the  best    local    administration    unit    for  the   school 

system 

2.  Shall  textbooks  and  necessary  school  supplies  be  free 

3.  How  is  uniformity  of  regulation  of  the  public  school  system 

to  be  promoted 

4.  What  provision  shall  be  made  for  a  school  census 

5.  How  can  facts  about  public  education  be  made  available  in 

most  useful  form 

The  Unit  for  Local  Administration  of  Public  Education 

The  experience  with  the  small  unit  of  educational  administration 
and  the  advantage  gained  in  other  states  from  the  adoption  of  larger 
units  suggest  the  desirability  of  abandoning  the  present  policy  of  divid- 
ing the  county  into  minor  districts  for  educational  purposes.  The  more 
important  reasons  for  this  change  are  to  be  found  in  the  present  inequali- 
ties in  the  burden  of  taxation  and  in  the  opportunities  for  education 
under  the  existing  system  of  local  administration.  The  attempt  which 
the  state  makes  through  the  apportionment  of  school  funds  to  equalize 
the  burden  and  the  opportunity  has  not  been  successful,  and  probably 
never  will  succeed.  Efficient  administration  and  supervision  of  schools 
demands  a  larger  unit  of  control.  For  instance  if  a  county  school 
board  should  be  established  it  would  make  possible  a  quality  of  service 
on  boards  of  education  which  is  not  now  secured  for  the  smaller  school 
units.  The  present  plan  in  New  York  state  of  dividing  the  county  into 
districts,  each  of  which  is  in  charge  of  a  district  superintendent,  cannot 
secure  adequate  specialized  supervision. 

It  is  thought  by  many  that  what  is  needed  is  the  larger  unit  of 
administration  with  the  provision  for  deputy  superintendents,  each  of 
whom  shall  be  a  specialist  along  some  particular  line.  In  one  county 
in  Maryland  at  the  present  time  there  are  two  assistant  superintendents 
who  supervise  rural  schools,  one  supervisor  of  the  upper  grades  of  schools 
which  have  more  than  two  teachers,  one  primary  supervisor,  one  super- 
visor of  manual  training,  and  one  supervisor  of  domestic  art  and  domes- 
tic science.  This  is  infinitely  superior  to  a  county  divided  into  six 
divisions,  each  of  which  might  be  presided  over  by  the  district  superin- 
tendent. The  facts  with  respect  to  the  present  inequality  of  burden  and 
of  educational  opportunity  can  be  established  by  examining  the  rate  of 
taxation,  cost  per  pupil,  and  the  like,  for  the  smaller  districts  in  New 
York  state.  County  units  of  organization  should  exclude  cities  of  five 
thousand  or  more  population,  employing  a  superintendent  who  devotes 
his  full  time  to  supervisory  duties.     The  county  organization  would,  of 

143 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

course,  make  the  county  the  unit  for  local  taxation,  and  all  state  funds 
apportioned  to  the  territory  included  in  the  county  organization  should 
be  apportioned  by  the  state  to  the  county  and  reapportioned  by  the 
county  in  such  manner  as  to  secure  equal  educational  opportunity.  With 
the  county  organization  once  established,  the  consolidation  of  schools 
would  be  furthered,  and  the  establishment  of  high  schools  could  be  under- 
taken with  reference  to  this  larger  unit  of  administration. 

Provisions  for  Free  Text-hooks  Throughout  the  State 

The  time  has  now  arrived  for  a  serious  consideration  of  the  question 
whether  all  text-books  and  necessary  school  supplies  should  be  furnished 
free  of  charge  by  the  county  or  city  school  districts.  If  this  is  decided 
in  the  afBrmative,  provision  then  should  be  made  which  will  establish  the 
right  of  the  different  county  or  city  units  of  supervision  to  select  their 
own  books.  If  the  principle  of  free  text-books  throughout  the  state  be 
established,  there  will  be  a  desire  upon  the  part  of  some  to  establish  uni- 
formity throughout  the  state.  This  would  be  most  unfortunate,  since 
rural  and  city  schools  districts  differ  with  respect  to  their  needs,  and 
must  always  be  less  efficient  if  the  supervisory  officers  and  teachers  are 
not  allowed  to  consider  the  problem  of  choosing  or  recommending  to 
their  local  board  texts  which  they  feel  they  can  use  to  best  advantage. 

The  Codification  of  Lazvs  for  the  Administration  of  Public  Education  in 
City  School  Districts 

There  is  very  great  need  for  establishing  uniform  legislation  with 
respect  to  the  administration  of  public  education  in  the  cities  of  the  state. 
Special  legislation  is  demanded  at  every  session  of  the  legislature  for  some 
one  city,  ignoring  in  many  cases,  if  not  in  most  of  them,  principles  which 
are  well  established  with  respect  to  educational  administration.  For 
example,  in  a  recent  session  of  the  legislature  the  mayor  of  one  city  asked 
for  a  law  abolishing  the  board  of  education  and  placing  the  schools  under 
the  control  of  the  mayor's  office. 
Provisions  for  a  Permanent  and  Continuing  Census 

These  provisions  are  now  to  be  found  only  in  cities  of  the  first  class, 
and  they  should  doubtless  be  extended  to  the  whole  state.  Question  may 
also  be  raised  as  to  whether  this  should  not  be  combined  with  other  forms 
of  canvass  and  census  work,  which  may  be  used  for  purposes  of  legisla- 
tion and  administration  concerning  matters  of  health,  labor,  industry,  etc. 
Provision  for  More  Adequate  Record  and  Report  of  School  Finances 

The  diversity  of  financial  methods  now  employed  in  the  state  make 
any  scientific  study  of  comparative  costs  and  methods  well  nigh  impos- 
sible. A  uniform  system  of  accounting  should  be  required,  which  would 
enable  any  properly  qualified  investigator  to  discover  the  cost"  of  any  part 
of  the  school  system,  or  of  any  function  performed  by  it.   More  adequate 

144 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

records  of  pupils  should  also  be  required.  A  cumulative  record  for  each 
pupil,  giving  the  facts  with  regard  to  his  name,  birth,  parentage,  residence, 
days  in  school  each  year,  scholarship,  conduct,  health,  and  the  like,  should 
be  kept  for  each  child  during  the  entire  school  career.  These  records 
should  be  kept  in  duplicate,  and  should  form  the  credentials  provided  by 
the  school  system  when  transfers  are  made  from  school  system  to  school 
system,  or  when  pupils  are  discharged  to  go  to  work.  Such  records  are, 
of  course,  of  very  great  advantage  to  the  school  system  in  which  the  child 
is  registered  in  the  study  of  problems  of  organization  and  administration. 

Part  IV. — Organization  for  Administration  of  State  Institutions 
FOR  THE  Care  of  Delinquents,  Defectives  and  Dependents 

In  New  York,  as  in  the  other  American  states,  the  state  is  assuming 
an  increasing  responsibility  for  the  support  and  custodial  care  of  de- 
linquents, defectives  and  dependents.  The  delinquents  have  been  provided 
for  from  the  earliest  times  in  state  prisons  and  reformatories,  but  pro- 
vision for  defectives  and  dependents  has  been  made,  for  the  most  part, 
until  quite  recently  by  the  state  incorporating  private  institutions  managed 
by  separate  and  independent  boards  composed  of  the  incorporators  or  per- 
sons chosen  by  them.  The  state  has  frequently  made  appropriations  to 
such  institutions  in  order  to  relieve  itself  of  the  necessity  of  providing 
for  the  work  which  they  were  doing  largely  through  the  voluntary  con- 
tributions of  their  members  and  supporters.  This  is  especially  true  of 
institutions  for  the  care  and  instruction  of  the  deaf  and  dumb  and  the 
blind.  Such  institutions  receiving  public  aid  have  been  subjected  to  public 
supervision  by  the  state  board  of  charities.  The  work  of  all  institutions 
providing  for  these  wards  of  the  state  is  brought  under  some  measure  of 
supervisory  control  and  public  accountability  through  the  activities  of  a 
formidable  array  of  boards,  commissions  and  state  officers,  but  for  the 
efficient  administration  of  most  of  them  there  is  no  direct  responsibility 
assumed  by  the  state,  nor  is  the  effort  of  the  state  looking  to  their  efficient 
performance  of  a  public  service  concentrated  in  any  direct  and  responsible 
way  in  any  single  department  of  the  state  government. 

The  chief  financial  burden  for  the  care  of  delinquents,  defectives  and 
dependents  rests  on  the  local  government  of  the  villages,  towns,  cities  and 
counties.  Partly  on  account  of  economic  and  social  conditions,  but  chiefly 
for  financial  reasons,  there  is  a  growing  tendency  here,  as  elsewhere,  for 
the  state  to  assume  an  increasing  share  of  this  burden  through  the  pro- 
vision of  state  custodial  care.  Economic  and  social  development  has 
made  dependency  no  longer  local  with  respect  to  its  causes  or  measures 
necessary  for  its  prevention  and  state  care  must  take  the  place  of  local 
care  as  in  the  case  of  the  insane  and  more  recently  for  increasing  num-^ 
bers  of  the  feeble-minded.    This  fact  makes  it  all  the  more  desirable  that 

145 


CONSTITUTION    AND   GOVERNMENT    OF    THE    STATE 

the  state  should  set  up  a  suitable  and  clearly-defined  department  of  gov- 
ernment for  the  exercise  of  functions  destined  to  assume  greater  magni- 
tude. 

Financial  Support  of  State  Institutions 

For  the  fiscal  year  beginning  October  1,  1914,  the  state  appropriated 
for  the  44  state  institutions  and  the  boards  and  commissions  having  to 
do  with  their  administration  or  their  supervision  the  sum  of  upwards  of 
thirteen  million  dollars,  of  which  over  ten  millions  was  for  administra- 
tion and  maintenance.  The  total  appropriation  amounted  to  over  30  per 
cent,  of  the  estimated  revenue  set  aside  for  the  general  expenses  of  the 
state. 

Large  as  these  appropriations  are,  they  were  not  sufficient  to  meet 
the  demands  of  the  institutions  themselves,  nor  the  still  larger  demands 
of  those  who  desire  the  state  to  meet  more  adequately  the  public  needs 
as  they  see  them  for  state  service  in  this  field. 

Summary  of  Existing  Organization  and  Exercise  of  State  Authority. 

Of  the  44  state  institutions,  for  whose  management  and  support 
nearly  one-third  of  the  estimated  revenues  of  the  state  was  appropriated, 
eight  are  administered  by  the  state  superintendent  of  prisons,  a  constitu- 
tional officer,  appointed  by  the  governor,  by  and  with  the  consent  and  ad- 
vice of  the  senate,  and  the  remaining  36  are  administered  (21  under 
certain  supervisory  fiscal  control  by  the  fiscal  supervisor  and  15  under 
the  State  Hospital  Commission)  by  36  separate  boards  of  managers,  one 
of  21  members  (Juvenile  Reformatory,  Randall's  Island),  and  one  of  15 
members  (Industrial  School  at  Industry,  see  ch.  121,  Laws  of  1915), 
and  34  of  seven  members  each,  appointed  by  the  governor,  who,  with 
the  comptroller  and  attorney-general,  serves  ex-officio  on  the  board  of 
the  New  York  Reformatory  at  Randall's  Island,  and  with  the  attorney- 
general,  ex-officio,  on  the  board  of  the  State  Soldiers  and  Sailors'  Home. 

Penal  Institutions 

Under  the  present  grouping,  for  administrative  purposes,  the  penal 
institutions  comprise  eight  institutions,  as  follows : 

Sing  Sing  Prison. 

Auburn  Prison. 

State  Prison  for  Women  (Auburn). 

State  Farm  for  Women   (Valatie). 

Clinton  Prison. 

Great  Meadow  Prison. 

Dannemora  State  Hospital  for  Insane  Convicts. 

Matteawan  State  Hospital  for  Insane  Criminals. 

146 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

State  Superintendent  of  Prisons 

This  officer,  provided  for  in  Article  V.,  Section  4  of  the  constitution, 
is  appointed  for  a  term  of  five  years.  His  duties  as  prescribed  by  the 
prison  law  include  the  superintendence,  management  and  control  of  the 
state  prisons  and  the  convicts  therein,  and  all  matters  relating  to  the 
government,  discipline,  police,  contract,  and  fiscal  concerns  thereof.  He 
appoints  the  agents,  wardens,  physicians  and  chaplains  of  the  five  state 
prisons.  He  has  under  his  control  six  prisons,  including  the  State  Farm 
for  Women,  and  the  two  Prison  Hospitals  at  Dannemora  and  Mattea- 
wan  for  insane  convicts  and  insane  criminals. 

State  Commission  of  Prisons 

This  is  a  constitutional  body,  provided  for  in  Article  VHI.,  Section 
11,  established  in  1895  (L.  1895,  Chapter  1026,  con't.  L.  1907,  Chapter  381, 
re-enacted  L.  1909,  Chapter  47)  consisting  of  seven  members,  with  powers 
of  visitation  and  inspection  of  all  institutions  used  for  the  detention  of 
sane  adults  charged  with  or  convicted  of  crime  or  detained  as  witnesses 
or  debtors.  Under  Article  HI  of  the  prison  law  this  commission  is 
directed  to  inspect  all  penal  institutions  throughout  the  state,  recommend  a 
system  of  employing  inmates,  arrange  for  the  distribution  of  industries 
among  penal  institutions,  prepare  estimates  annually  of  the  articles  which 
may  be  manufactured  in  penal  institutions  to  meet  the  needs  or  require- 
ments of  the  state  or  its  political  divisions,  or  purchases  by  institutions 
with  state  funds  under  the  provisions  of  the  state  use  system ;  also  to  make 
rules  for  the  diversification  of  industries  and  the  requisitions  for  supplies. 
The  duties  with  respect  to  the  industries  of  penal  institutions  are  rather 
perfunctorily  performed  and  their  effect  on  the  administration  of  the 
industries  in  the  penal  institutions  is  rather  theoretical  than  actually 
controlling. 

Commission  on  New  Prisons 

Created  by  act  of  the  legislature  in  1906  (L.  1906,  Chapter  670)  to 
select  a  new  site  for  Sing  Sing  Prison  and  prepare  plans  for  such  addi- 
tional accommodation  as  might  be  necessary  to  take  care  of  prisoners 
now  sent  to  Sing  Sing.  This  commission  is  still  in  existence,  although 
two  sites  have  been  purchased  and  considerable  expense  incurred  by  the 
commission  without  any  satisfactory  solution  or  any  action  of  the  commis- 
sion looking  to  the  relief  of  the  congestion  of  Sing  Sing.  The  commission, 
in  a  sense,  serves  for  the  penal  institutions  somewhat  the  same  purpose 
as  the  commission  on  sites,  grounds  and  buildings  is  supposed  to  serve 
for  the  charitable  institutions. 

The  State  Board  of  Classification 

This  board  consists  of  the  fiscal  supervisor,  the  superintendent  of 
prisons,  the  state  commission  of  prisons  and  the  state  hospital  commis- 

IA7 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

sion,  all  of  whom  are  ex-officio  and  without  additional  compensation. 
It  acts  under  authority  of  the  prison  law  (Consolidated  laws,  chapter 
43,  paragraph  184),  to  fix  and  determine  the  prices  at  which  all  labor 
performed  and  articles  manufactured  in  the  charitable  and  penal  institu- 
tions of  the  state  shall  -be  furnished  to  the  state  or  political  divisions 
thereof  or  to  institutions,  with  certain  exceptions.  The  board  also  classi- 
iies  buildings,  offices  and  institutions  maintained  or  controlled  by  the  state 
and  fixes  and  determines  styles,  patterns  and  qualities  of  articles  manu- 
factured for  the  use  of  the  same. 

Board  of  Parole  of  State  Prisons 

Constituted  by  Article  VII  of  the  prison  law,  it  is  composed  of  three 
members,  including  the  superintendent  of  prisons  and  two  others,  ap- 
pointed by  the  governor  by  and  with  the  advice  and  consent  of  the  senate. 
The  board  meets  monthly,  except  for  two  months  of  each  year,  at  each 
of  the  prisons  to  pass  upon  applications  for  parole  and  it  reports  to  the 
governor  with  its  recommendations  on  all  applications  for  pardon.  It  is 
charged  with  the  duty  of  adopting  a  uniform  system  for  determining  the 
marks  or  credits  which  each  prisoner  must  earn  as  a  condition  for  release 
by  parole. 

Board  of  Examiners  of  Feeble-minded  Criminals  and  Other  Defectives 
Provision  was  made  in  chapter  445  of  the  laws  of  1912  for  the  ap- 
pointment by  the  governor  of  a  board  of  three  members,  a  surgeon,  a 
neurologist  and  a  practitioner  of  medicine  for  a  term  of  five  years  to 
examine  into  the  mental  and  physical  condition  of  the  record  and  family 
history  of  feeble-minded,  epileptic,  criminal  and  other  defective  inmates 
confined  in  the  several  state  hospitals  for  insane  prisoners,  reformatories 
and  charitable  and  penal  institutions,  and  to  perform  such  operations  for 
the  prevention  of  procreation  as  may  be  deemed  advisable  by  the  board. 
This  board  has  never  reallv  functioned. 

Prison  Association  of  New  York 

This  is  a  privately  supported  organization  chartered  by  chapter  163 
of  the  laws  of  1846  and  vested  with  power  to  visit,  inspect  and  examine 
all  the  prisons  in  the  state  and  to  report  annually  to  the  legislature. 

Charitable  Institutions  and  Reformatories 

Under  this  group,  under  the  existing  administrative  classification, 
belong  the  following  institutions : 

a.  Ten  reformatories. 

b.  Five  asylums  for  mentally  deficient,  including  epileptics. 

c.  Two  hospitals  and  one  school  for  defectives. 

d.  Three  institutions   for  dependents 

148 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

The  state  authority  is  exercised  over  these  institutions  chiefly 
through  two  agencies  and  those,  for  the  most  part,  inspectional  in  char- 
acter, viz.,  the  state  board  of  charities  and  the  fiscal  supervisor  of  state 
charities.  The  latter  officer,  however,  is  exercising  a  progressively  in- 
creasing control  through  his  powers  to  allow  or  disallow  expenditures, 
and  the  eifect  of  his  recommendations  to  the  legislature  upon  its  ap- 
propriations for  the  several  institutions,  all  of  which,  however,  are 
supposed  to  be  directly  managed  by  separate  boards. 

The  State  Board  of  Charities 

This  board  was  established  in  1867  and  created  a  constitutional  body 
by  Article  VIII,  section  11  of  the  constitution,  and  is  composed  of 
twelve  members,  one  from  each  of  the  nine  judicial  districts  and  three 
additional  members  from  the  City  of  New  York,  appointed  by  the  gov- 
ernor by  and  with  the  advice  and  consent  of  the  senate  for  a  term  of 
eight  years.  The  state  charities  law  and  the  poor  law  (L.  1909,  chapters 
40,  46  and  57)  enumerate  in  detail  the  powers  and  duties  of  the  board, 
which  are  briefly  to  visit  and  inspect  all  institutions,  whether  state,  county, 
municipal,  incorporated  or  not  incorporated,  which  are  of  a  charitable, 
reformatory,  eleemosynary  or  correctional  character,  and  receive  pub- 
lic aid,*  except  only  those  that  are  subject  to  the  visitation  and  inspection 
of  the  state  hospital  commission  and  the  state  prison  commission.  The 
state  board  has  a  separate  department  of  state  and  alien  poor  whose  func- 
tions include  supervision  of  institutions,  with  which  they  contract  for  the 
support  of  Indian,  state  and  alien  poor,  auditing  the  bills  for  the  same, 
and  supervision  of  the  removal  of  state  and  alien  poor. 

Fiscal  Supervisor  of  State  Charities 

This  is  not  a  constitutional  office,  but  provision  is  made  for  it  in  the 
state  charities  law  providing  for  the  appointment  of  the  fiscal  super- 
visor by  the  governor  with  the  advice  and  consent  of  the  senate.  He  is 
required  to  visit  each  institution  of  a  charitable  and  reformatory  char- 
acter, to  examine  into  all  matters  relating  to  the  financial  management, 
to  appoint  a  competent  person  to  examine  the  books,  papers  and  accounts 
of  institutions  and  to  submit  to  the  legislature  an  estimate  of  appropria- 
tions needed  for  maintenance  and  special  purposes. 


*  This  limitation  of  powers  of  inspection  to  institutions  receiving  public  aid 
wa.^  apparently  not  intended  by  the  Constitution  nor  the  Charities  Law  but  resulted 
from  the  decision  of  the  Court  of  Appeals  (April  17,  1900)  in  "  The  People  of  the 
State  of  New  York  ex  rcl.  The  State  Board  of  Charities.  Respondent,  against  The 
New  York  Society  for  the  Prevention  of  Cruelty  to  Children,  Appellant,"  and  the 
intent  of  the  Constitution  should  be  made  clear  in  the  present  revision  to  meet 
this  decision. 


149 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

Building  Improvement  Commission 

Organized  in  1910,  under  chapter  47  of  the  laws  of  1910;  consists 
of  the  governor,  the  president  of  the  state  board  of  charities,  and  the 
fiscal  supervisor,  with  powers  to  approve  or  reject  plans  and  specifications 
for  the  erection,  alteration,  repair  or  improvement  of  buildings  or  plants 
for  any  state  institution  reporting  to  the  fiscal  supervisor,  except  the  New 
York  State  Reformatory  at  Elmira  and  the  Eastern  New  York  Reforma- 
tory at  Napannoch. 

Salary  Classification  Commission 

Organized  under  laws  of  1899,  amended  by  chapter  215,  laws  of 
1914,  provides  for  a  commission  consisting  of  the  comptroller,  president 
of  the  state  board  of  charities,  and  the  fiscal  supervisor,  to  classify  into 
grades  the  officers  and  employees  of  the  institutions  reporting  to  the 
fiscal  supervisor,  and  to  recommend  to  the  governor  changes  in  salaries 
and  wages  as  may  seem  proper.  Such  changes,  however,  require  the 
written  approval  of  the  governor  before  becoming  effective. 

State  Charities  Aid  Association 

Incorporated  May  22,  1880,  by  special  act,  chapter  323,  laws  of  1881, 
and  under  sections  30-32  of  Article  III  of  the  charities  law  (Cons.  L., 
chapter  55),  it  is  vested  with  power  to  visit  and  inspect  all  charitable  in- 
stitutions and  hospitals  supported  by  the  state,  and  to  report  thereon  to 
the  state  board  of  charities.  This  is  also  a  privately  supported  institu- 
tion, which  renders  a  service  through  publicity  intended  to  affect  the  man- 
agement of  these  institutions  and  the  control  which  intelligent  public 
opinion  exercises  in  matters  of  this  kind. 

Commission  on  Sites,  Grounds  and  Buildings 

This  commission,  provided  for  by  chapter  625  of  the  laws  of  1913, 
consists  of  the  fiscal  supervisor,  a  member  of  the  state  board  of  charities, 
the  state  architect,  a  member  of  the  conservation  commission,  the  com- 
missioner of  agriculture,  the  chairman  of  the  assembly  ways  and  means 
committee,  and  the  senate  finance  committee,  with  power  to  acquire  by 
gift,  purchase  or  condemnation,  property  for  the  laying  out  of  grounds 
and  to  locate  all  buildings  to  be  erected  at  all  state  institutions  reporting 
to  the  fiscal  supervisor.  Action  of  the  commission  is  final  and  subject 
to  review  only  by  the  governor  at  a  public  hearing.  This  is  an  organi- 
zation for  the  charitable  institutions  and  reformatories  somewhat 
analogous  to  the  commission  on  new  prisons  for  the  needs  of  the  penal 
institutions  and  is  an  equally  foolish  and  wasteful  method  of  fixing 
responsibility  and  securing  economy  in  the  planning  for  extension  and 
new  institutional  equipment. 

150 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

Joint  Purchasing  Committee 

The  charitable  institutions  and  reformatories  reporting  to  the  state 
fiscal  supervisor  have  also  a  joint  purchasing  committee  (established  by 
L.  1905,  chapter  457,  amended  by  L.  1915,  chapter  662),  the  chairman 
of  which  is  a  superintendent  of  an  institution,  appointed  for  two  years 
by  the  fiscal  supervisor,  two  stewards,  appointed  by  the  chairman,  and 
three  superintendents  elected  at  the  annual  meeting  of  the  superintend- 
ents. The  committee  meets  on  call  of  the  fiscal  supervisor  to  make  awards 
under  joint  contracts  for  the  purchase  of  staple  supplies.  Members  are 
paid  their  necessary  traveling  expenses  in  attending  meetings,  from  a 
fund  prorated  and  charged  to  maintenance  accounts  of  all  institutions. 
The  second  deputy  fiscal  supervisor  acts  as  secretary. 
State  Hospitals  for  the  Insane 

There  are  14  of  these  institutions  which  are  really  administered  by 
separate  boards  of  managers,  but  as  a  group  with  respect  to  the  exer- 
cise of  state  authority,  they  occupy  an  intermediate  position  between  the 
penal  institutions  including,  however,  two  hospitals  for  the  insane  which 
exist  for  insane  convicts  and  insane  criminals,  on  the  one  hand,  and  the 
charitable  institutions  and  reformatories  on  the  other  hand.  The  state 
hospitals  for  the  insane  are  governed  by  local  boards  of  managers  under 
supervisory  control  of  a  state  hospital  commission  which,  while  not  pos- 
sessing all  the  powers  of  control  exercised  by  the  state  prison  commission 
over  the  penal  institutions,  does,  however,  exercise  a  larger  measure  of 
control  in  addition  to  its  powers  of  inspection  than  the  state  board  of 
charities  does  over  the  charitable  institutions  and  reformatories.  A  brief 
description  of  the  public  authorities  or  boards  exercising  supervisory 
powers  over  the  state  hospitals  for  the  insane  will  be  found  in  the  dis- 
cussion of  the  State  Hospital  Commission  below  and  in  that  of  the  State 
Charities  Aid  Association,  Board  of  Examiners  of  Feeble-minded  Crim- 
inals and  other  defectives.  Salary  Classification  Commission,  Building 
Improvement  Commission,  and  the  State  Board  of  Classification,  all  of 
which  have  been  described  above  in  the  discussion  of  the  charitable 
institutions. 

State  Hospital  Commission 

The  commission  organized  as  the  state  commission  in  lunacy  (L.  1912, 
chapter  121),  is  a  constitutional  board  of  three  members,  one  of  whom 
must  be  a  physician  and  one  an  attorney  and  counsellor  at  law,  appointed 
by  the  governor,  by  and  with  the  consent  of  the  senate.  The  insanity  law 
(chapter  27  of  the  consolidated  laws)  charges  this  commission  with  the 
execution  of  the  laws  relating  to  the  custody,  care  and  treatment  of  the  in- 
sane, not  including  feeble-minded  persons  and  epileptics  as  such,  and  idiots. 
The  state  hospital  commission  is  a  successor  to  and  has  all  the  powers 
granted  by  the  constitution  to  the  state  commission  in  lunacy.    It  examines 

151 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

all  institutions,  public  and  private,  in  which  insane  persons  are  kept,  and 
may  endeavor  to  secure  legislation  from  congress  to  provide  more 
effectually  for  the  removal  of  alien  and  non-resident  insane.  It  has  gen- 
eral oversight  of  state  hospitals  and  the  control  of  all  the  property  thereof, 
and  must  see  that  the  purposes  of  such  hospitals  are  carried  into  eft'ect 
by  their  respective  boards  of  managers.  It  reports  annually  to  the  legis- 
lature and  furnishes  estimates  of  the  amounts  required  for  maintaining 
the  state  hospitals  and  presents  the  reasons  for  these  estimates.  There 
are  14  of  these  hospitals  under  the  supervisory  control  of  the  commis- 
sion and,  in  addition,  a  psychiatric  institute  which  makes  psychiatric  and 
psychological  investigations  and  gives  instruction  to  the  medical  staffs 
of  the  several  hospitals,  and  also  a  retirement  board  of  state  hospital  em- 
ployees charged  with  the  administration  of  a'  retirement  fund  established 
(L.  1912,  chapter  59)  to  pay  annuities  to  employees  of  state  hospitals. 
The  board  designates  employees  for  retirement  and  is  composed  of  the 
chairman  of  the  state  hospital  commission,  a  lay-member  and  the  state 
comptroller. 

There  is  also  associated  with  the  hospital  commission  a  joint  pur- 
chasing committee  created  by  the  commission  from  among  its  own  em- 
ployees, viz.,  three  superintendents,  tw^o  stewards  and  five  other  employees 
of  the  hospitals  who  act  together  in  making  up  specifications  and  draw- 
ing contracts  for  the  purchase  of  supplies.  A  similar  joint  purchasing 
committee  acts  with  and  under  the  direction  of  the  state  fiscal  supervisor 
in  the  performance  of  similar  duties  for  the  state  charitable  institutions 
subject  to  his  financial  supervision. 

State  Supervisory  Control  Common  to  All  Institutions 

There  are  several  state  officers  or  state  authorities  wdio  exercise  a 
certain  supervision  and,  in  some  senses,  limit  or  control  at  least  a  part 
of  the  administrative  work  of  all  the  charitable  and  penal  institutions, 
including,  of  course,  hospitals,  reformatories,  etc.  Notable  illustrations 
of  this  are  found  in  the  ofiices  of  state  comptroller  and  state  architect. 

The  state  comptroller  is  the  chief  auditor  by  article  V.,  section  1  of 
the  constitution,  and  is  also  charged  wath  the  duty  of  appointing  the  clerks 
in  each  state  prison.  He  audits  accounts  and  claims  against  the  state, 
keeps  records  of  all  transactions,  prepares  budget  estimates  for  the  legis- 
lature and  under  chapter  342,  L.  1913,  copies  of  all  estimates  of  $1,000  or 
over  are  filed  wath  him  as  w^ell  as  with  the  fiscal  supervisor,  resulting  in 
duplication  of  work  and  power  to  dictate  policies. 

The  state  architect  (now  made  the  Department  of  Architecture  by 
chapter  111,  L.  1914),  under  the  provisions  of  the  public  buildings  law 
and  the  insanity  law,  ]:)repares  drawings  and  specifications  and  super- 
vises the  construction  of  all  new  buildings  erected  at  state  expense,  and 
likewise  all  additions,  alterations  and  improvements  to  existing  buildings. 

152 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

He  prepares  necessary  forms  of  contracts  to  be  approved  by  the  attorney 
general,  and  his  approval  is  required  in  some  cases  for  minor  construction 
work  when  done  by  special  order. 

General  Characterization  and  Criticism  of  Existing  Governmental  Ma- 
chinery 

It  is  quite  evident  from  the  above  summaries  that  the  legislature  has 
pursued  a  halting,  variable  and  experimental  policy  in  dealing  with  the 
problems  of  the  scope  and  character  of  state  authority  and  responsibility 
for  its  charitable  and  penal  institutions.  It  has  set  up  at  least  three  lines 
of  control  primarily  vested  in  the  superintendent  of  prisons,  the  state 
hospital  commission,  and  the  fiscal  supervisor  for  three  arbitrary  groups 
of  institutions,  in  each  case  not  clearly  defined  as  to  purpose  and  extent 
and  not  logically  defined  as  to  object.  Three  divisions  in  the  exercise  of 
state  authority  may  be  expedient  and  their  classification  justifiable,  but 
the  total  lack  of  a  co-ordinating  agency  through  which  problems  common 
to  all  may  be  cleared  and  a  stronger  executive  influence  exerted  is 
apparent  to  all.  This  is  due  to  the  absence  of  close  working  relation- 
ships between  the  three  existing  divisions  of  state  authority. 

The  superintendent  of  prisons  and  the  prison  commission  are  not 
brought  into  sufficiently  close  working  relations  or  made  as  a  unit 
directly  responsible  and  responsive  to  the  control  of  the  governor.  The 
same  may  be  said  of  the  state  hospital  commission  and  the  boards  of 
managers  of  the  fourteen  state  hospitals  for  the  insane,  including  also 
the  two  hospitals  for  insane  convicts  and  criminals  now  under  the  super- 
intendent of  prisons,  all  of  which  form  another  unit  that  could  be 
organized  under  the  president  of  the  hospital  commission  and  made  more 
responsible  and  responsive  to  the  governor.  The  state  fiscal  supervisor 
and  the  state  board  of  charities  might  be  organically  related  and  made  a 
third  unit  and  in  like  manner  made  more  responsible  and  responsive, 
through  the  president  of  the  state  board,  to  the  governor. 

In  some  such  way,  if  the  head  of  each  of  these  three  services  were 
brought  into  close  personal  contact  through  one  departmental  head  with 
the  governor,  the  necessary  co-ordination  of  activities  and  the  conse- 
quent elimination  of  some  friction,  much  duphcation  and  unnecessary 
cost  could  be  accomplished  without  any  very  serious  disturbance  in  the 
existing  classification  of  public  institutions,  which  has  seemed  to  work 
fairly  well  in  this  state.  The  suggestion  of  combining  these  services 
into  one  department  was  made  in  a  bill  considered  in  the  last  legislature, 
creating  a  board  of  regulation  of  state  institutions,  and  this  plan  is  quite 
in  line  with  a  general  tendency  in  other  states,  many  of  which  have 
already  adopted  state  boards  of  control.  The  bill  just  mentioned,  how- 
ever, consolidates  only  two  divisions  of  this  service,  comprising  the  state 

153 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

hospitals,  charitable  institutions  and  reformatories  and  does  not  include 
the  prisons,  and  yet  this  proposal  aroused  very  vigorous  and  widespread 
opposition  from  those  who  fear  a  deterioration  in  this  branch  of  public 
service  and  no  economy  or  greater  efficiency  in  administration  from  such 
consolidation.*  The  weight  of  evidence  is,  however,  in  favor  of  greater 
centralization  in  the  management  of  these  state  institutions,  provided 
local  boards  of  management  can  be  retained  to  perform  subordinate 
functions  and  to  hold  and  increase  the  popular  interest  and  participation 
in  the  affairs  of  institutions  which  are  organized  to  relieve  distress  and 
serve  the  unfortunate,  but  sometimes  seem  to  furnish  unusual  oppor- 
tunities for  the  selfish  exploitation  of  those  who  are  helpless  to  protest 
or  defend  themselves.  It  is  precisely  such  institutions,  however,  which 
do  make  a  strong  sentimental  appeal  to  the' finer  instincts  of  the  people 
to  share  with  the  state  the  burdens  of  responsibility  of  caring  for  these 
unfortunate  wards.  There  are,  of  course,  strong  arguments  for  the 
greatest  amount  of  local  autonomy  in  the  management  of  these  institu- 
tions, and  considerable  literature  discussing  the  advantages  and  disadvan- 
tages of  state  boards  of  control  has  been  published  during  the  past  fifteen 
or  twenty  years. f  Specific  criticism  of  the  organization  of  the  existing 
machinery  is  briefiy  summarized  below. 

Division  of  Authority 

In  the  case  of  the  penal  institutions,  there  is  the  greatest  concentra- 
tion of  authority  in  the  hands  of  the  state  superintendent  of  prisons.  His 
control  is  fiscal,  actual  and  administrative.  The  institutions  under  his 
care  have  no  separate,  independent  boards  of  managers,  but  along  with 
supervision  the  state  commission  of  prisons  may  and  does  affect  in  impor- 
tant particulars  their  administration.  Its  inspections  and  reports  on 
conditions  do  not  grow  out  of  administrative  experience  and  can  perform 
no  materially  greater  service  of  publicity  as  to  conditions  than  similar 
work  on  the  part  of  a  private  agency  like  the  Prison  Association  might 
be  expected  to  do.  The  boards  of  managers  of  reformatories  seem  to 
perform  a  useful  service  in  bringing  new  ideas  into  the  administration 


*  See  Memorandum  and  Brief  of  State  Charities  Aid  Association  issued  March 
18,  1915,  in  opposition  to  Hinman-Sage  bill  creating  a  board  of  regulation  of  state 
institutions. 

t  See  reports  of  the  National  Conference  of  Charities  and  Correction;  numerous 
references  to  be  found  by  consulting  the  general  index ;  also  "  Methods  of  Fiscal 
Control  of  State  Institutions,"  by  Henry  C.  Wright,  in  a  report  of  the  State 
Charities  Aid  Association  of  New  York,  printed  March,  1911;  also  Summary  of 
Findings,  Conclusions  and  Suggested  Method  of  Supervising  State  Institutions, 
reprinted  from  Mr.  Wright's  report  by  State  Charities  Aid  Association,  March, 
1911 ;  also  State  Control  and  Supervision  of  Charities  and  Corrections,  by  Ander- 
son W.  Clark,  University  Studies,  University  of  Nebraska,  Volume  V,  No.  4, 
October,  1905 ;  also  Report  on  Charitable  and  Correctional  Institutions,  by  James 
W.  Garner,  prepared  for  Illinois  Economy  and  Efficiency  Commission,  1914;  also 
Report  of  Special  Committee  of  the  Board  of  Managers  of  Letchworth  Village 
on  the  system  of  control  of  the  state  charitable  and  reformatory  institutions,  1914. 

154 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

of  these  institutions  and  connecting  them  up  more  directly  with  local 
and  popular  interest  in  their  problems  and  their  inmates,  but  no  such 
boards  exist  for  the  prisons,  neither  does  the  superintendent  of  prisons 
stand,  as  he  probably  ought,  as  chief  executive  of  a  prison  department 
with  the  prison  commission  acting  in  the  capacity  of  an  advisory  council. 
The  appointment  by  the  state  comptroller  of  the  clerks  in  the  prisons  is 
intended  to  secure  uniformity  of  bookkeeping  and  reporting,  but  repre- 
sents another  authority  exercising  some  fiscal  supervision  and  perhaps 
incidental  control. 

In  the  hospital  division  there  is  likewise  a  multiplicity  of  counselors 
and  supervisors  without  sufficient  co-ordination  for  general  purposes 
between  the  state  commission,  the  building  improvement  commission, 
boards  of  classification  and  the  local  boards,  the  functions  of  which  could 
be  better  defined  and  exercised  probably  by  concentrating  all  authority 
in  the  hospital  commission  and  the  local  boards  and  defining  more  clearly 
their  related  and  respective  spheres  of  action. 

In  the  charitable  group,  including  the  reformatories,  which  more 
logically  belong  with  the  penal  institutions,  there  is  still  greater  division 
of  authority  and  consequent  lack  of  responsibility  and  responsiveness. 
An  elaborate  system  of  checks  and  balances  is  found  in  the  division  and 
overlapping  powers  and  duties  among  the  fiscal  supervisor,  the  comp- 
troller, the  state  board  of  charities,  the  building  improvement  commission, 
the  commission  on  sites,  grounds  and  buildings,  the  salary  classification 
commission,  and  the  local  boards  of  the  several  institutions  themselves.  A 
strong  state  board  with  a  fiscal  supervisor  if  necessary  as  one  of  its  execu- 
tive officers  could'  be  properly  related  to  the  local  boards  with  whatever 
demarcation  between  supervision  and  control  the  legislature  deemed  wise, 
and  the  result  would  make  for  simplicity,  directness  and  responsiveness  in 
organization. 
Duplication  of  Inspection 

Divided  authority  naturally  leads  to  duplication  of  inspection,  since 
publicity  and  supervision  rather  than  direct  administrative  control  con- 
stitute the  larger  purposes  in  the  exercise  of  the  state  authority  over  its 
charitable  and  penal  institutions. 

In  the  prison  group  the  prison  commission,  under  Article  III,  sec- 
tion 46  of  the  prison  law,  has  elaborate  powers  to  visit  and  inspect  all 
institutions  used  for  detention  of  sane  adults  charged  with  or  convicted 
of  crime,  or  detained  as  witnesses  or  debtors,  excepting  such  reforma- 
tories as  are  subject  to  visit  and  inspection  by  state  board  of  charities. 
The  powers  and  duties  enumerated  in  the  law  with  respect  to  this  in- 
spection include,  among  other  things:  (1)  sanitary  and  health  inspection; 
(2)  building  inspection,  including  plans  for  new  construction;  (3)  statis- 
tical information;  (4)  employment  of  inmates. 

155 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

The  first  is  duplicated  by  the  requirement  of  the  pubhc  health  law 
(1913)  that  the  state  health  department  inspect  all  state  institutions.  Its 
schedules  for  this  work  in  the  past  have  been  quite  detailed  and  elaborate, 
and  have  probably  exceeded  the  limits  of  sanitary  and  health  inspection 
to  which  they  ought  to  be  confined  with  perhaps  the  addition  of  necessary 
inspection  of  fire  protection  since  the  abolition  of  the  state  fire  marshal's 
office.  At  the  last  session  of  the  legislature  the  powers  and  duties  of  the 
state  fire  marshal,  with  respect  to  factories,  were  transferred  to  the 
labor  department  after  the  abolition  of  the  office  of  the  state  fire  marshal. 
Therefore,  inspection  for  safety  and  fire  protection  might  now  be  added 
to  that  for  health  and  sanitation  and  made  exclusive  and  mandatory  in 
the  state  health  department  for  the  charitable  and  penal  institutions. 

The  second,  building  inspection,  is  duplicated  by  special  investigations 
by  the  superintendent  of  prisons,  who  has  one  confidential  agent  and 
details  other  employees  for  inspectional  purposes  as  necessity -arises,  and 
may  be  duplicated  by  the  state  architect's  office  with  respect  to  plans  for 
new  construction,  and  also  by  the  com.mission  on  new  prisons. 

The  third,  statistical  information,  is  duplicated  by  the  relatively 
useless  and  inefficient  bureau  of  criminal  statistics  and  mining  claims  in 
the  state  department. 

The  fourth,  with  respect  to  the  employment  of  inmates,  duplicates 
what  the  superintendent  of  prisons  can  do  better  and  usually  does  do  for 
the  commission. 

Perhaps  a  concrete  illustration  of  the  unnecessary  overlapping  of 
inspectional  functions  will  best  illustrate  this  criticism.  The  best  single 
illustration  is  found  in  the  case  of  the  Elmira  and  Napannoch  reforma- 
tories which,  under  the  present  classification,  belong  with  the  charitable 
institutions  and  not  with  the  penal  group.  These  two  reformatories  hap- 
pen to  be  under  the  management  of  a  joint  board  known  as  the  state 
board  of  managers  of  reformatories  under  a  peculiar  provision  of  the 
state  charities  law  (paragraph  50)  with  full  investigational  powers.  They 
are  also  put  under  detailed  and  overlapping  investigation  by  the  state 
fiscal  supervisor,  the  state  board  of  charities,  and  the  state  health 
department. 

In  the  division  of  charitable  institutions  and  reformatories,  the 
duplication  of  inspection  plainly  results  in  unnecessary  waste  of  efl:ort, 
annoyance  to  institutions,  and  lack  of  thorough  accomplishment  of  the 
aim  of  the  state.  It  is  one  thing  for  the  state  to  grant  the  right  of  entry 
and  full  powers  of  inspection  to  an  outside,  privately  managed  organiza- 
tion Hke  the  State  Charities  Aid  Association,  or  the  New  York  Prison 
Association,  in  order  to  insure,  at  the  expense  of  private  citizenship 
organizations,  the  widest  publicity  concerning  the  operations  of  these 
institutions  about  which  baseless  rumors  always  exist  and  in  which  there  is 

156 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

constant  danger  of  maladministration.  It  is  quite  another  thing  to  provide 
at  state  expense  for  mandatory  inspection  and  supervision,  in  order  to  in- 
sure efficient  and  economic  administration  and  to  know  that  the  law  is 
obeyed  and  is  adequate  to  accomplish  the  full  purposes  of  state  responsibil- 
ity. The  latter  kind  of  inspection  implies  costly  and  well-organized  expert 
service,  and  there  is  no  reason  why  it  should  be  divided  among  many 
independent  or  badly  co-ordinated  departments  or  should  work  at  cross 
purposes  and  operate  to  stifle  and  discourage  initiative  and  enterprise 
on  the  part  of  the  administrators  of  the  law. 

Inadequate  Powers 

The  state  board  of  charities  has  been  restricted  in  the  scope  of  its 
powers  by  the  decision  of  the  court  of  appeals  (April  17,  1900)  in  the 
case  of  "  The  People  of  the  State  of  New  York  ex  rel.  The  State  Board 
of  Charities,  Respondent,  vs.  The  New  York  Society  for  the  Preven- 
tion of  Cruelty  to  Children,  Appellant,"  the  effect  of  which  was  to  re- 
move all  the  private  charities  not  receiving  public  aid  from  its  jurisdic- 
tion and  put  them  beyond  its  inspectional  powers.*  y\lthough  the  state 
makes  appropriations  to  many  private  institutions,  especially  to  those  for 
the  benefit  of  the  deaf,  dumb  and  blind,  it  still  relies  upon  a  great  num- 
ber of  private  institutions,  to  whose  support  it  does  not  contribute,  to 
perform  a  valuable  service  for  its  dependents,  defectives  and  delinquents, 
for  whom  it  otherwise  would  have  to  make  provision.  It  was  certainly 
the  intention  of  the  legislature  to  have  public  information  as  to  how  this 
work  was  being  done,  and  the  state  board  for  several  years  rendered  a 
valuable  service  in  including  them  all  in  their  inspection  of  institutions 
and  the  legislature  voted  adequate  appropriations  to  enable  the  board  to 
do  this  until  the  board  was  precluded  from  doing  so  by  the  effect  of  the 
decision  to  which  reference  has  just  been  made.  This  raises  a  question 
whether  the  constitutional  powers  of  the  board  should  not  be  broadly 
defined  to  include  the  power  and  duty  of  inspection  of  all  charitable 
institutions. 

The  fiscal  supervisor  is  limited,  according  to  opinions  of  the  attorney 
general,!  to  the  supervision  of  the  fiscal  officers  and  the  physical  condi- 
tion of  the  grounds  and  buildings  of  the  institutions  reporting  to  him  and 
has  no  supervisory  powers  in  respect  to  policies,  discipline  or  methods 
of  said  institutions.  While  the  fiscal  supervisor  has  exercised  his  fiscal 
powers  at  times  in  a  way  to  amount  to  almost  absolute  control  over  all 
the  affairs  of  the  institutions  according  to  competent  critics, J  his  powers 


*For  full  report  of  this  decision  and  the  questions  involved,  see  "  State  In- 
spection of  Private  Charitable  Institutions,  Societies  or  Associations,"  by  William 
R.  Stewart,  President  of  State  Board  of  Charities,  reprinted  from  "  The  Quarterlv 
Record,"  June,  1900. 

t  See  reports,  attorney  general,  November  10  and  15,  1909. 

i  See  H.  C.  Wright's  report  on  State  Charities  Aid  Association. 

157 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

are  not  as  clearly  defined  as  they  should  be  and,  what  is  more  important, 
they  are  not  co-ordinated  with  those  of  the  state  board  of  charities,  which 
would  eliminate  much  duplication  of  inspection  and  bring  the  institu- 
tions, subject  to  both,  under  a  simpler  and  more  direct  supervision,  less 
liable  to  conflicting  tendencies  in  the  underlying  premises  and  policies 
of  its  guiding  or  controlling  influence. 

Part  \. — Organization  for  the  Administration  of  Public  Health 

Functions 

General  Description  of  Functions 

In  general  the  promotion  of  public  health  includes  the  following  func- 
tions ;  the  investigation,  prevention  and  control  of  diseases  dangerous  to 
public  health;  the  investigation  of  the  sources  of  mortality  and  the  regis- 
tration, analysis  and  compilation  of  statistical  data  relative  to  births 
and  deaths;  the  regulation  and  supervision  of  the  manufacture,  produc- 
tion, handling,  storage  and  sale  of  foods  and  food  products ;  the  regulation 
of  the  sale  of  drugs ;  the  supervision  of  water  supplies  and  sewage  disposal 
and  sewage  disposal  plants;  the  prevention  and  abatement  of  nuisances, 
the  dissemination  of  information  for  health  protection  and  education ; 
the  manufacture  and  distribution  by  sale  or  otherwise  of  laboratory 
products  for  use  in  the  prevention  or  treatment  of  diseases,  and  the  fur- 
nishing of  laboratory  examinations  or  analysis  as  an  aid  to  physicians 
or  others  in  the  protection  of  public  health.  In  the  very  broad  terms 
of  the  public  health  law,  the  problems  of  public  health  involve  matters 
having  to  do  with  the  promotion  of  health  and  the  security  of  life  within 
the   State. 

Present  Organization  for  Carrying  on  Health  Functions 

1.  The  State  Department  of  Health  has  been  recently  reorganized, 
and  is  now  efirectively  controlling  the  major  part  of  the  health  functions 
of  the  State  (see  report  on  organization  and  functions,  pages  132  to  143, 
inclusive).  The  head  of  the  department  is  a  commissioner,  appointed 
by  the  Governor,  by  and  with  the  advice  and  consent  of  the  Senate,  for 
a  term  of  six  years,  and  is  required  to  appoint  a  deputy  commissioner, 
who  is  subject  to  removal  at  the  pleasure  of  the  coinmissioner.  The 
aeputy  commissioner,  under  the  present  organization,  is  in  direct  super- 
vision of  the  work  of  the  various  divisions  of  the  department. 

Under  the  commissioner  and  directly  responsible  to  him  are  the 
oflices  of  the  secretary  of  the  department,  who  acts  also  as  secretary  to 
the  public  health  council  and  the  office  of  the  executive  clerk,  who  is 
charged  with  general  office  supervision,  audit  and  clerical  and  steno- 
graphic work. 

The  public  health  council  consists  of  the  commissioner  of  health  and 

158 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

six  members  appointed  by  tbe  governor  for  terms  of  six  years  eacb.  At 
least  tbree  of  the  members  of  tbe  council  shall  be  physicians  and  one  shall 
be  a  sanitary  engineer.  Its  duties  are  to  establish,  and  from  time  to 
time  to  amend,  sanitary  regulations  (sanitary  code)  dealing  with  any 
matter  affecting  the  security  of  life  or  health  within  the  state  and  it  may 
enact,  and  as  required,  amend  by-laws  in  relation  to  its  own  procedure. 
The  public  health  council  is  further  empowered  to  prescribe  by  regulation 
the  qualifications  of  the  directors  of  the  various  divisions  of  the  depart- 
ment, sanitary  supervisors,  public  health  nurses  and  local  health  officers 
who  may  be  appointed  under  the  recently  amended  public  health  law. 

The  consulting  staff  of  physicians  consists  of  four  to  six  experts 
in  public  health  work,  who  act  as  advisers  or  consultants  to  the  commis- 
sioner in  matters  relating  to  their  particular  special  fields.  They  are 
appointed  by  the  commissioner  as  occasion  requires  and  serve  without 
compensation  other  than  fees  for  services  rendered  and  dependent  upon 
the  kind  of  service  required. 

The  following  functional  divisions  are  established  in  the  department 
of  health,  each  division  being  in  charge  of  a  director: 

a.  The  division  of  sanitary  supervisors 

b.  The  division  of  sanitary  engineering 

c.  The  division  of  laboratories 

d.  The  division  of  communicable  diseases 

e.  The  division  of  vital  statistics 

f.  Division  of  publicity  and  education 

g.  The  division  of  child  hygiene 

h.  The  division  of  public  health  nursing 

i.  The  division  of  cold  storage  inspection 

2.  State  Department  of  Agriculture.  Certain  functions  of  the  de- 
partment of  agriculture  are  obviously  health  functions.  A  brief  descrip- 
tion of  the  bureaus  of  the  department  of  agriculture  charged  with  these 
functions  follows : 

a.  The  bureau  of  dairy  products  (see  report  on  organization  and 

functions,  pp.  303  to  307  inclusive,  and  chart  GA,  p.  298). 

b.  The  bureau  of  veterinary  service  (see  report  on  organization 

and  functions,  pp.  307  to  309  inclusive,  and  chart  GA,  p. 
298). 

c.  The   bureau    of   chemistry    (see   report   on   organization   and 

functions,  pp.  314-315,  and  chart  GA,  p.  298). 

3.  The  state  department  of  labor  also  carries  on  certain  functions 
which  are  directly  concerned  with  the  promotion  of  health.     The  organi- 

159 


CONSTITUTION   AND    GOVERNMENT    OF    THE    STATE 

zation  units  of  the  department  of  labor  which  are  charged  with  these 
health  functions  may  be  briefly  described  as  follows : 

a.  The  division  of  industrial  hygiene  of  the  bureau  of  inspections 

(see  report  on  organization  and  functions,  pp.  240-241, 
and  chart  EH,  p.  228). 

b.  The  division  of  industrial  accidents  and  diseases  of  the  bureau 

of  statistics  and  information  (see  report  on  organization 
and  functions,  pp.  243-244,  and  chart  EH,  p.  228) . 

c.  The  division  of  homework  inspection  of  the  bureau  of  inspec- 

tions is  here  considered  as  being  concerned  chiefly  with 
the  performance  of  a  health  function.  The  primary 
purpose  of  this  division  is  to  carry  on  investigations  ot 
hygiene  and  sanitation  among  workers  engaged  in  work 
which  is  done  for  factories,  but  outside  of  such  factories, 
that  is,  in  the  homes  of  the  workers.  The  inspectors 
are  required  also  to  obtain  information  relative  to  the 
age  of  workers,  the  hours  of  employment  and  other  facts 
of  which  the  labor  law  takes  cognizance  (See  report 
on  organization  and  functions,  p.  239,  and  chart  EH, 
p.  228). 

4.  The  state  board  of  charities  performs  certain  functions  which 
have  a  very  direct  bearing  upon  the  promotion  of  public  health  and  which 
w^e  believe  may  properly  be  considered  from  the  standpoint  of  their 
health  relations,  rather  than  from  that  of  their  relation  to  the  problems  of 
poor  relief. 

a.  The  department  of  state  and  alien  poor  is  charged  with  the 

inspection  and  supervision  of  all  state  institutions.  This 
includes  the  inspection  and  supervision  of  the  hospital 
for  the  treatment  of  incipient  pulmonary  tuberculosis  at 
Ray  Brook,  the  primary  purpose  of  which  is  the  preven- 
tion and  control  of  tuberculosis — a  health  function  (see 
report  on  organization  and  functions,  pp.  414-415 
inclusive,    and    chart   lA,    p.    406). 

b.  The  department  of  inspection  makes  inspections  of  all  chari- 

table organizations  and  institutions  under  private  con- 
trol that  receive  public  funds,  and  makes  special  investi- 
gations of  state  hospitals,  charitable  and  reformatory 
institutions  throughout  the  state.  It  also  makes  investi- 
gations of  other  hospitals,  dispensaries,  and  private, 
municipal  and  county  institutions  within  the  state.  In 
so  far  as  the  inspections  and  investigations  of  this  depart- 
ment of  the  state  board  of   charities   relates  to  private 

160 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

hospitals  and  dispensaries  and  municipal  and  county 
hospitals,  the  problem  is  one  of  health  control  rather  than 
of  charities  (see  report  on  organization  and  functions, 
pp.  415-416  inclusive,  and  chart  I  A,  p.  406). 

5.  Certain  regulative  functions  now  performed  by  the  state  through 
independent  and  uncorrelated  organization  units  are  here  considered  as 
health  functions,  not  because  the  w^ork  performed  by  them  is  primarily 
for  the  promotion  of  public  health,  but  because  of  the  desirability  from 
an  administrative  point  of  view  of  correlating  them  under  one  adminis- 
trative head,  and  because  they  are  perhaps  more  closely  allied  to  func- 
tions of  health  and  safety  promotion  than  to  any  other. 

a.  The  superintendent  of  weights  and  measures  is  appointed  by 

the  governor  by  and  with  the  advice  and  consent  of  the 
senate  for  a  term  of  five  years  (for  organization  of  this 
office,  see  report  on  organization  and  functions,  p.  283 
and  chart  EN,  p.  282). 

The  superintendent  of  weights  and  measures  is 
charged  with  the  custody  of  the  standards  of  weights  and 
measures  of  the  state ;  correction  by  comparison  with  state 
standards  of  city  and  county  standards  as  often  as  once 
in  five  years ;  the  testing  at  least  once  annually  of  all 
scales,  weights  and  measures  in  every  institution  under 
the  jurisdiction  of  the  fiscal  supervisor  of  state  charities ; 
the  inspection  at  least  once  in  two  years  of  all  standards 
used  by  counties  or  cities,  and  the  maintenance  of  a  record 
of  the  same;  the  establishment  of  uniform  tolerances  of 
reasonable  variation ;  the  certification  to  the  attorney- 
general  of  the  facts  concerning  intentional  violations 
of  the  law. 

b.  The  state  racing  commission  is  composed  of  three  members 

appointed  by  the  governor  for  a  term  of  five  years.  They 
have  jurisdiction  over  all  racing  or  steeplechase  corpora- 
tions or  association  in  the  state,  issue  licenses  to  conduct 
racing  meetings ;  see  that  all  such  races  are  conducted 
according  to  the  rules  and  regulations  prescribed  by  law, 
and  that  five  per  cent,  of  all  gross  receipts  of  such  racing 
meetings  is  paid  to  the  state  comptroller.  (See  report 
on  organization  and  functions,  p.  286,  and  chart  EN, 
p.  282). 
3.  The  New  York  state  athletic  commission  is  composed  of  three 
members  appointed  by  the  governor  for  a  term  of  five 
years.     Two  are  required  to  reside  within  the  first  and 

161 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

second  judicial  districts.  The  commission  has  direct 
management  and  jurisdiction  over  all  boxing  and  sparring 
matches  and  exhibitions.  They  may  issue  and  revoke 
all  licenses  and  must  see  that  five  per  cent,  of  the  gross 
receipts  from  all  licensed  matches  is  paid  to  the  comp- 
troller (see  report  on  organization  and  functions,  p. 
286  and  chart  EN,  p.  282). 

d.  The  harbormasters  are  three  in  number  and  are  appointed  by 

the  governor  to  regulate  and  station  steamboats  and  other 
vessels  navigating  the  Hudson  River,  north  of  the  city  of 
New  York,  and  determine  how  far  and  in  what  instances 
masters  or  other  persons  having  charge  of  steamboats  or 
vessels  shall  accommodate  each  other  in  their  respective 
anchorages  (see  report  on  organization  and  functions, 
p.  284  and  chart  EN,  p.  283). 

e.  The  state  board  of  port  wardens  consists  of  nine  port  wardens 

who  are  appointed  by  the  governor  for  terms  of  three 
years  each,  and  one  special  port  warden  similarly 
appointed  for  a  term  of  two  years.  The  duties  of  the 
port  wardens  are  to  board  vessels  for  the  purpose  of 
examining  the  condition  and  storage  of  cargo,  and  in  case 
of  damage  to  vessel  or  cargo,  to  ascertain  the  cause  and 
extent  of  such  damage.  They  are  exclusive  surveyors 
of  vessels  which  have  suffered  wreck  or  which  shall  be 
deemed  unfit  to  proceed  to  sea  and  are  required  to 
appraise  the  damage  and  determine  the  repairs  necessary 
to  render  the  vessel  seaworthy  and  to  estimate  value  or 
measurement  of  vessels  or  cargo  in  cases  of  dispute. 
They  examine  all  applicants  for  positions  as  Hell  Gate 
pilots,  recommend  appointments,  and  make  all  rates  and 
regulations  for  the  branch  of  pilot  service  (see  report 
on  organization  and  functions,  p.  285  and  chart  EN, 
p.  283). 

Lack  of  Correlation  of  Health  Functions 

Although  the  state  department  of  health  has  recently  been  re- 
organized and  has  adopted  a  sanitary  code  which  prescribes  the  regula- 
tions under  which  the  various  health  functions  of  the  state  shall  be  per- 
formed, lack  of  correlation  of  these  health  functions  prevents  the  properly 
responsible  body — that  is,  the  state  department  of  health — from  exercis- 
ing adequate  supervision  over  the  actual  performance  of  these  functions. 
1.  Complete  and  adequate  regulations  have  been  prescribed  for  the 
protection  of  the  food  supply,  including  milk,  but  the  actual  supervision 

162 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

of  the  food  supply  through  inspection  and  analysis  of  foods  is  still  largely 
within  the  jurisdiction  of  the  department  of  agriculture  in  its  bureau  of 
dairy  products  and  bureau  of  veterinary  service.  The  primary  object  of 
the  regulation  of  the  milk  supply,  for  example,  is  not  the  promotion  of 
the  milk-producing  industry  nor  the  protection  of  the  producer,  but 
rather  the  protection  of  the  public  against  diseases  which  are  trans- 
missible through  milk  and  the  prevention  of  contamination  of  milk  by 
dirt  or  adulterants.  This  is  essentially  a  health  measure.  Similarly,  the 
inspection  of  cattle  by  the  veterinarians  of  the  department  of  agricul- 
ture is  not  merely  for  the  purpose  of  seeing  that  the  cattle  owners  are 
protected  against  loss  of  their  animals  from  disease,  but  to  prevent 
the  spread  of  those  diseases  to  man  through  the  consumption  of  the  flesh 
of  disease-contaminated  animals  slaughtered  for  food,  or  directly  from 
living  animals  to  man.  The  majority  of  the  diseases  of  domestic  animals 
are  transmitted  to  man  in  one  of  these  three  ways,  and  the  elimination 
of  animal  diseases  is  therefore  of  primary  importance  in  the  promotion  of 
public  health. 

2.  As  previously  shown  the  department  of  labor  maintains  a  divi- 
sion of  industrial  hygiene,  which  conducts  investigations  of  industrial 
processes  with  a  view  to  the  prevention  of  industrial  diseases,  and  also 
a  division  of  industrial  accidents  and  diseases,  which  is  charged  with 
the  collection,  tabulation  and  compilation  of  statistical  and  other  mate- 
rial regarding  poisonings  from  lead,  phosphorus,  arsenic,  brass,  wood 
alcohol,  mercury  or  their  compounds,  or  from  anthrax,  or  compressed  air 
illness,  contracted  as  the  result  of  the  nature  of  the  patient's  employment 
(Sec.  65  of  Art.  5,  Labor  Law).  The  law  requires  physicians  to  report 
all  such  cases  to  the  commissioner  of  labor  and  prescribes  the  information 
to  be  furnished  by  physicians.  It  is  evident  that  the  success  of  regis- 
tration and  prevention  of  industrial  diseases  depends,  in  large  measure, 
upon  the  co-operation  of  private  physicians  who  are  called  upon  to  treat 
cases  of  industrial  disease,  and  such  co-operation  is  much  more  easily 
secured  by  the  state  department  of  health,  which  is  in  daily  contact  with 
the  physicians  of  the  state.  Research  and  laboratory  investigations, 
which  may  be  carried  on  with  reference  to  these  diseases,  require  medical 
expertness  in  the  highest  degree.  The  state  department  of  health  already 
has  a  staff  of  experts  in  both  field  and  laboratory  research  and  investi- 
gation. 

The  prevention  of  industrial  diseases  and  the  promotion  of  indus- 
trial hygiene  is  not  exclusively  a  labor  problem,  but  rather  part  of  the 
general  problem  of  the  promotion  of  public  health.  Tuberculosis,  for 
example,  is  so  prevalent  among  workers  in  certain  trades  that  it  has  come 
to  be  regarded,  in  certain  of  its  forms,  as  an  industrial  disease,  but  the 
prevention  of  tuberculosis  in  all  its  forms  is  one  of  the  state's  great  health 

163 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

problems,  which  to  be  effectively  dealt  with  must  be  considered  in  its 
relation  to  other  communicable  diseases,  the  food  supply,  including  milk, 
general  sanitation  and  hygiene,  and  all  other  matters  which  pertain  to 
public  health. 

3.  The  inspection  and  supervision  of  the  conditions  under  which 
workers  are  employed  in  their  homes,  which  service  is  now  rendered  by 
the  division  of  homework  inspection  of  the  department  of  labor  is 
intended  as  a  health  measure.  In  our  larger  cities  considerable  work  is 
done  for  factories  in  the  homes  of  employees  and  much  of  this  work  is 
done  by  children.  The  most  fertile  field  for  the  promotion  of  public 
health  is  that  of  prevention  of  diseases  and  mortality  among  children. 
Conditions  which  might  have  little  or  no  eft'ect  upon  adults  quite  often 
result  in  serious  impairment  of  the  health  of  children.  The  correlation 
of  all  existing  activities  designed  to  promote  child  health  is  therefore 
very  desirable. 

4.  Up  to  the  present  time  supervision  of  private,  municipal  and 
county  hospitals  and  dispensaries  throughout  the  state,  as  well  as  the 
supervision  of  the  state  hospital  for  the  treatment  of  incipient  pulmonary 
tuberculosis,  has  been  in  the  hands  of  the  state  board  of  charities.  Here 
again  the  object  of  such  supervision  is  primarily  that  of  promoting  public 
health  and  not  of  providing  relief  for  the  indigent.  For  the  best  supervi- 
sion of  such  activities,  it  is  essential  that  that  department,  which  is 
charged  with  the  prevention  of  disease,  should  be  also  responsible  for 
the  measures  necessary  to  provide  proper  treatment. 

5.  The  various  regulative  organization  units  previously  described, 
namely,  the  state  superintendent  of  weights  and  measures,  the  state 
racing  commission,  the  state  athletic  commission,  the  harbor  masters 
and  the  board  of  port  wardens  now  act  entirely  independently.  Each  is 
responsible  directly  to  the  governor,  whose  supervision  of  these  organiza- 
tion units  must,  of  necessity,  be  only  a  nominal  one,  and  is  based  almost 
wholly  upon  the  reports  which  are  submitted  to  him  by  the  heads  of  these 
various  bodies.  The  result  of  such  supervision  has  in  certain  instances 
been  detrimental  to  the  public  welfare  as  well  as  unnecessarily  costly. 

a.  The  office  of  the  superintendent  of  weights  and  measures, 
which  performs  a  purely  regulative  function,  has  up  to 
this  time  been  considered  as  a  separate  and  distinct  unit, 
not  allied  in  any  way  with  other  regulative  functions  of 
the  government.  To  a  certain  extent  this  is  true,  but  it 
is  also  true  that  the  office  of  the  superintendent  of 
weights  and  measures  is  more  closely  allied  to  those 
functions  which  are  promotive  of  the  public  health  than 
to  any  other  functional  grouping.  The  regulation  of 
matters  relating  to  weights  and  measures  is  very  closely 

164 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

concerned  with  the  question  of  control  of  the  food  supply, 
which  is  a  primary  health  function.  The  inspection  of 
weights  and  measures  throughout  the  state  may,  by  close 
correlation  with  the  food  inspection  service,  be  made 
to  render  signal  service  in  the  protection  of  goods  against 
adulteration  or  misbranding.  It  is  therefore  suggested 
that  the  service  now  rendered  by  the  office  of  the  state 
superintendent  of  weights  and  measures  should  be  con- 
sidered in  its  relation  to  the  state's  plan  for  the  promotion 
of  public  health  and  should  be  placed  under  the  same 
supervision  as  other  functions  in  health  control. 

b.  The  state  racing  commission  and  the  state  athletic  commission 

are  very  similar  in  purpose.  They  are  both  created  for 
the  purpose  of  regulating  recreational  activities,  which 
it  is  assumed  the  citizens  of  the  state  demand  and  which 
must  be  properly  supervised,  in  order  to  prevent  the 
exploitation  of  the  public  to  its  disadvantage.  The  func- 
tions of  both  these  commissions  are  perhaps  more  closely 
allied  to  those  functions  which  have  been  grouped  as 
promotive  of  public  health  than  to  any  other  grouping  of 
functions.  For  the  sake  of  improved  administrative 
control,  these  two  commissions  have  been  included  among 
the  functions  herewith,  considered  as  promotive  of  public 
health. 

c.  Two  other  organization  units,  namely,  the  harbor  masters  and 

the  board  of  port  wardens,  are  created  primarily  for 
regulating  and  insuring  the  safety  of  navigation.  The 
report  on  the  board  of  port  wardens  indicates  very 
clearly  that  there  is  need  for  better  supervision  of  this 
work.  The  correlation  of  the  functions  now  performed  by 
the  harbor  masters  and  port  wardens,  under  the  single 
head  responsible  for  the  promotion  of  public  health  activ- 
ities, would  do  away  with  many  of  the  defects  of  the 
present  organization.  It  is  therefore  suggested  that  these 
functions  be  also  included  in  the  grouping  herein  de- 
scribed of  functions  for  the  promotion  of  public  health. 
Need  for  Closer  Relation  of  Legislative  Coimeil  to  Executives 

The  present  organization  plan  of  the  state  department  of  health 
under  a  single  executive  responsible  directly  to  the  governor  and  assisted 
by  an  expert  legislative  staff,  namely,  the  public  health  council,  is  well 
calculated  to  secure  best  results  in  public  health  administration.  The 
difficulty  which  now  exists  in  the  enforcement  of  the  sanitary  code,  which 
has  been  drawn  up  by  the  public  health  council,   is  the   result  of   the 

165 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

division  of  health  functions  among  several  departments  of  the  state.  It 
is  essential  in  carrying  out  thoroughly  a  plan  for  the  promotion  of  public 
health  that  the  body  which  makes  regulations  shall  be  an  integral  part, 
or  at  least  very  closely  allied  with  the  organization  charged  with  the 
enforcement  of  these  regulations.  Regulations  may  need  modifications 
or  amendment  in  order  that  the  peculiar  conditions  found  by  supervisors 
or  inspectors  in  the  various  fields  of  health  service  may  be  met,  and  the 
closer  the  contact  and  cooperation  of  the  legislative  council  with  the 
executive  officers,  the  easier  it  is  for  the  council  to  iit  its  regulations  to 
the  conditions  in  the  field. 

Economy  Through  Better  Organisation 

The  lack  of  correlation  of  functions  promotive  of  public  health 
means,  of  course,  increased  cost  for  overhead,  as  well  as  special  service. 
Each  division  of  work,  whether  it  be  under  the  control  of  the  depart- 
ment of  health,  the  department  of  agriculture,  the  department  of  labor 
or  other  organization  unit  of  the  state  government,  requires  its  own 
directing  officers  or  staff,  its  own  clerical  and  stenographic  force,  its 
special  inspectors  and  its  special  reports.  The  consolidation  of  many 
of  these  functions,  now  so  widely  separated,  would  inevitably  reduce  the 
amount  of  supervision  needed,  the  clerical  and  stenographic  force 
required  and  the  cost  of  reporting  results.  Cooperation  in  the  working 
out  of  a  comprehensive  inspectional  plan  would  mean  fewer  inspectors 
and  lower  cost. 

Indeterminate   Tenure  of  Office  Desirable 

The  commissioner  of  health  is  appointed  for  a  term  of  six  years. 
This  means  that  every  third  governor  has  the  appointment  of  a  commis- 
sioner of  health.  While  it  is  desirable  that  the  term  of  the  commissioner 
of  health  should  be  more  than  two  years,  it  is  very  undesirable  that  the 
governor,  who  may  be  held  accountable  for  the  acts  of  his  subordinates, 
should  not  be  always  responsible  for  the  selection  of  those  subordinates. 
He  should  not  find  it  difficult  to  remove  them  when  they  fail  to  carry  out 
the  policies  upon  the  basis  of  which  his  administration  has  been  supported 
by  the  people.  It  is  important,  also,  in  carrying  out  any  program  for  the 
promotion  of  public  health  that  the  offices  responsible  for  the  concep- 
tion of  the  plan,  the  organization  of  the  force,  and  the  performance  of 
the  work  shall  be  continued  in  office  long  enough  to  work  out  his  pro- 
gram. Six  years  is  not  long  enough,  and  it  has  been  the  experience  of 
public  health  workers  that  a  long  term  of  office  of  the  commissioner  of 
health  or  health  officer  almost  invariably  results  in  progressive  efficiency 
of  health  service.  If  power  of  removal  is  freely  given  the  appointing 
officer,  that  officer  must,  of  necessity,  exercise  such  power  wisely,  for  in 
removing  a  competent  subordinate  he  is  certain  that  the  public  will  review 

166 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

his  act  to  his  own  disadvantage.  Such  a  plan  of  indeterminate  tenure 
of  office,  Hmited  only  by  the  power  of  the  appointing  officers  to  remove 
the  incumbent  at  his  discretion,  will  result  inevitably  in  the  continuance 
in  authority  of  an  efficient  commissioner,  and  the  prompt  removal  of  an 
inefficient  one  by  the  governor. 

Part  VI. — Organization  for  the  Administration  of  State  Activi- 
ties Having  to  do  with  Industrial  Relations 

There  are  peculiar  difficulties  in  any  attempt  to  appraise  the  existing 
governmental  machinery  for  dealing  with  industrial  relations  in  New 
York  state.  The  legislature  has  just  passed  a  comprehensive  statute 
completely  reorganizing  the  state  labor  department  and  combining  with 
it  the  workmen's  compensation  commission,  thus  constituting  an  indus- 
trial commission  with  new  and  extensive  powers.  If  the  ne^v  commissioaJ 
is  thoroughly  and  efficiently  organized  along  the  lines  projected  and  im-  j 
plied  in  the  Spring  Bill,  which  has  just  received  (May  22,  1915)  the 
governor's  approval,  the  grounds  for  many  of  the  criticisms  and  sugges- 
tions contained  in  this  chapter  will  doubtless  be  removed.  The  com- 
ments herein  are  based,  however,  on  the  existing  order  before  the  indus- 
trial commission  comes  into  being.  That  order  corresponds  to  the  descrip- 
tion to  be  found  on  pages  229-247,  269-277,  and  elsewhere,  in  the  survey 
of  organization  and  functions  reported  by  the  New  York  bureau  of 
municipal  research  and  the  New  York  state  department  of  efficiency  and 
economy,  January  1,  1915. 

Scope  of  State  Function  of  Regulation  of  Industrial  Relations 

New  York  heads  the  list  of  states  both  in  the  number  of  its  indus- 
trial establishments  and  in  the  number  of  its  industrial  workers.  The  United 
States  Census  Bureau  in  1909  enumerated  44,935  manufacturing  estab- 
lishments and  1,003,981  as  the  average  number  of  wage  earners  in  those 
establishments  for  the  state  of  New  York  as  compared  with  Pennsylvania, 
the  second  state  in  order  of  importance  in  this  matter  with  27,563  estab- 
lishments and  877,543  wage  earners.  The  relatively  large  number  of  small 
establishments  in  New  York  is  the  significant  fact  indicated  by  these 
figures  and  complicating  the  question  of  state  regulation.  The  reports 
of  the  New  York  state  department  of  labor  showed  an  even  greater  task 
accomplished  in  that,  its  division  of  factory  inspection  alone,  in  Septem- 
ber, 1914,  covered  51,118  manufacturing  establishments  and  1,364,070 
employees,  of  whom  88,022  were  office  employees. 

These  figures  do  not  cover  the  persons  affected  by  the  division  of 
mercantile  inspection,  the  division  of  inspection  of  mines,  tunnels,  etc., 
and  the  division  of  home  work  inspection.  No  adequate  figures  are 
available  to  show  how  many  persons  are  affected  by  the  labor  law  en- 
forced by  these  divisions  of  the  inspection  bureau  of  the  department  of 

167 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

labor.  Nor  do  they  include,  of  course,  the  persons  affected  by  the  work 
of  the  employment  bureau,  the  mediation  and  arbitration  bureau  and  the 
industrial  and  immigration  bureau  of  that  department,  and  by  the  work- 
men's compensation  commission  and  by  the  public  service  commissions 
in  their  jurisdiction  over  employees  on  steam  railroads,  trolley  lines,  sur- 
face and  underground  railways,  nor  by  the  payment  of  wages  provisions 
of  the  labor  law  also  enforced  by  the  department  of  labor. 

Since  the  preservation  of  order  and  the  protection  of  property  have 
always  been  regarded  as  primary  duties  of  government  it  might  be  sup- 
posed that  both  historically  and  quantitatively  the  concern  of  the  state 
would  find  its  chief  expression  in  dealing  with  strikes  and  industrial  dis- 
putes. This  is,  however,  not  exactly  the  fact.  A  large  mass  of  the  legis- 
lation from  the  earliest  time  has  set  up  standards  and  attempted  to  en- 
force them  with  respect  to  the  health,  safety  and  morals  of  employees 
and  the  sanitary  condition  of  the  places  in  which  they  work.  A  recent 
amendment  to  the  state  constitution  (article  1,  section  19)  says  "  nothing 
contained  in  this  constitution  shall  be  construed  to  limit  the  power  of 
the  legislature  to  enact  laws  for  the  protection  of  the  lives,  health  or 
safety  of  employees."  And  even  in  the  absence  of  express  authority,  the 
legislature  under  the  exercise  of  the  police  power  has  been  sustained  in 
the  enactments  of  a  wide  range  of  provisions  that  extend  widely  the 
constitutional  power  just  mentioned.  The  scope  of  state  functions  with 
respect  to  labor  may  be  said  to  include  at  least  the  following  matters : 

1.  Contractual  relations  of  employers  and  employees 

2.  Safety  and  sanitation  with  respect  to  factories,  workshops  and 

conditions  of  work 

3.  Hours  of  labor,  provision   for  rest  periods  and  meal  hours, 

with  more  stringent  regulation  and  stricter  supervision  of 
those  for  women  and  children 

4.  Age,  physical  and  educational  qualifications  of  children  who 

engage  in  industry 

5.  Machinery  for  securing  compensation  for  industrial  accidents 

and  their  prevention 

6.  Machinery  for  mediation,  arbitration  and  investigation  of  in- 

dustrial disputes 

7.  Machinery  for  the  equitable  adjustment  and  local  application 

of  the  general  principles  of  the  labor  law,  as  well  as  the 
supplementing  and  amplifying  of  its  mandatory  provisions 

8.  Protection  of  the  rights  of  aliens  and  immigrant  laborers 

Existing  State  Organisation 

The  labor  department  is  a  large  and,  within  recent  years,  a  strongly 
centralized  department  of  the  government.     It  has  a  staff  of  391   em- 

168 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

ployees  costing  in  salaries  alone  nearly  $600,000  per  annum.  The  re- 
cently organized  workmen's  compensation  commission,  which  has  been 
in  operation  less  than  a  year,  has  an  additional  staff  nearly  as  large,  com- 
prising 337  persons  at  an  annual  salary  cost  of  over  $500,000.  The  addi- 
tional cost  of  these  two  departments,  over  and  above  the  salary  cost, 
will  amount  to  another  half  million  dollars  per  annum.  Yet  neither  of 
these  departments,  and  least  of  all  the  labor  department,  is  able  to  per- 
form the  work  contemplated  in  the  laws  it  is  called  upon  to  enforce, 
notwithstanding  also  the  fact  that  the  health  department  and  the  public 
service  commissions  are  expected  to  supplement  this  service,  though  at 
present  the  actual  work  they  do  in  connection  with  matters  pertaining  to 
industrial  relations  from  the  point  of  view  of  protecting  the  interests  and 
welfare  of  employees  probably  does  not  bulk  large  enough  to  add  much 
to  their  respective  annual  budgets,  nor  to  the  cost  to  the  state  for  the 
performance  of  this  function. 
The  Industrial  Board 

Organized  May  16,  1913,  with  the  commissioner  of  labor  as  its 
chairman,  and  four  associate  members  appointed  by  the  governor  and 
confirmed  by  the  senate,  this  board  has  broad  discretionary  powers  and 
authority  to  make  rules  and  regulations  applicable  to  varying  conditions 
of  industry.  It  may  determine  what  specific  measures  or  methods  are 
necessary  to  fulfill  the  requirements  of  the  labor  law,  but  may  not  pass 
rules  or  regulations  inconsistent  with  any  statute  or  mandatory  provision 
of  the  law.  It  may,  however,  require  additional  safeguards  as  to  con- 
struction, equipment  and  maintenance  of  factory  buildings,  in  order  to 
carry  out  the  purposes  of  the  law.  It  has  power  to  regulate  sanitary 
arrangements  even  in  labor  camps  furnished  by  factory  owner,  directly  or 
indirectly,  for  housing  workers  employed  in  any  factory.  It  may  estab- 
lish a  sanitary  code  for  bakeries  and  confectioneries  except  in  cities  of 
the  first  class  and  make  regulations  for  health  and  safety  of  workers  in 
mines,  tunnels  and  quarries.  In  many  of  these  respects  it  exercises 
powers  duplicated  by  the  health  authorities.  It  may  exempt  from  or 
modify  the  provisions  of  the  one  day  of  rest  in  seven  law  (section  8a  of 
the  labor  law)  in  cases  of  emergency,  and  for  brief  periods  (June  25. 
to  August  5)  it  may  permit  females  eighteen  years  of  age  and  upwards 
employed  in  canning  establishments  to  work  66  hours  per  week  instead 
of  60,  and  also  modify  specified  fire  and  safety  provisions  that  otherwise 
are  mandatory.  Its  powers  to  make  variations  subject  to  public  hearings 
and  record  are  not,  however,  sufficiently  broad  to  meet  the  needs  of  so 
complicated  a  situation  as  that  created  by  the  rigid  state-wide  mandatory 
provisions  of  many  parts  of  the  labor  law. 

In  New  York  City,  for  example,  it  is  said  that  there  are  22  inde- 
pendent public  agencies  empowered  to  inspect  buildings   for  industrial 

169 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

purposes,  and  concurrent  approval  of  many  of  them  is  necessary  before 
any  structural  changes  can  be  made,  which  leads  to  unnecessary  expense 
and  annoyance  to  owners  and  occupiers,  as  well  as  causes  useless  expense 
to  the  state.  The  industrial  board  does  not  have  the  sole  and  complete 
power  to  establish  finally  and  fully  the  standards  of  protection  required 
in  buildings  where  workers  are  employed,  even  if  other  agencies  were 
allowed  to  inspect  or  required  to  co-operate  in  the  enforcement  of  these 
standards. 

The  commissioner  of  labor  has  still  power  to  issue  orders  approving 
safety  devices  and  in  other  matters  left  to  his  discretion,  independently 
of  the  board  of  which  he  is  chairman  and  whose  rules  and  regulations  he 
must  enforce,  and  this  fact  has  given  rise  to  some  conflict  and  confusion. 

The  board  has  no  staff  agencies  of  its  own,  but  must  make  the  inves- 
tigations upon  which  its  quasi  legislative  and  judicial  powers  are  based 
with  the  aid  of  such  persons  as  the  commissioner  of  labor  is  willing  to 
detail  to  the  service  of  the  board.  A  better  concentration  and  simplifi- 
cation of  powers  could  be  brought  about  by  not  delegating  to  so  many 
other  bodies  duties  with  respect  to  safety,  fire  protection  and  health  of 
employees,  at  least  in  cases  where  the  necessary  standard  might  be  better 
determined  on  the  basis  of  a  broader  knowledge  of  the  facts  of  industry 
by  the  more  highly  specialized  industrial  board. 

Merc  an  tile  Est  ab  lis  hm  e  n  ts 

One  division  of  the  inspection  bureau  of  the  department  of  labor 
deals  with  mercantile  establishments  and  is  in  charge  of  a  chief  mercan- 
tile inspector  at  a  salary  of  $4,000,  with  26  employees  whose  salaries 
aggregate  $30,720.  Another  division  of  the  same  bureau  has  charge  of 
home-work  inspection,  with  a  chief  at  $3,000  and  17  employees  at  a  total 
annual  salary  cost  of  $21,000.  Neither  of  these  divisions  is  equipped  to 
do  more  than  a  fraction  of  the  work  imposed  upon  it  by  the  law  if  even 
the  minimum  standards  of  factory  inspection  are  to  be  applied  to  mercan- 
tile establishments  and  to  home  work.  The  mercantile  law  dates  from 
1897  and  resulted  from  the  investigations  of  the  Reinhard  Committee ; 
it  prescribed  much  lower  standards  for  mercantile  establishments  than 
for  factories  with  respect  to  the  hours  of  work  for  children  under  16  and 
girls  under  21,  with  exceptions  for  the  holiday  season — at  first  to  include 
ten  days  before  Christmas,  but  since  then  reduced  to  seven  days. 
For  women  over  21  years  of  age  no  protection  was  aft'orded.  In 
1897  the  enforcement  was  put  in  the  hands  of  local  boards  of  health 
who  made  no  attempts  to  do  anything  about  it  and,  in  many  towns,  made 
inspections  only  on  complaint.  The  New  York  City  board  of  health  had 
a  special  corps  of  mercantile  inspectors  for  only  about  eight  months, 
and  afterward  turned  this  work  over  to  the  regular  sanitary  inspectors 
as  a  part  of  their  other  duties.    They  were  not  trained  to  enforce  a  labor 

170 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

law,  and  the  women  and  children  in  stores  did  not  secure  the  protection 
the  law  intended.  In  1908  the  legislature  passed  laws  giving  the  enforce- 
ment of  the  mercantile  law  in  cities  of  the  first  class  to  the  labor  commis- 
sioner, who  organized  a  separate  bureau  in  charge  of  a  mercantile 
inspector  and  eight  deputies,  later  increased  to  nine.  Even  with  this 
small  force,  inspection  during  the  next  four  years  revealed  widespread 
non-compliance  with  the  law.  Thousands  of  children  were  found  illeg- 
ally employed,  but  with  even  a  few  inspectors  to  cover  the  three  largest 
cities  of  the  state,  the  labor  commissioner  secured  considerable  improve- 
ment. The  factory  investigating  commission  in  1913  found  the  condi- 
tions outside  of  cities  of  the  first  class  so  unsatisfactory  that  upon  its 
recommendation  the  legislature  subsequently  took  away  the  jurisdiction 
of  the  local  boards  of  health  over  mercantile  establishments  in  second- 
class  cities,  and  added  it  to  that  of  the  labor  department.  In  1914  the 
mercantile  inspection  division  of  the  labor  department,  then  covering 
cities  of  the  first  and  second  class,  made  27,116  inspections,  and  estimated 
that  these  inspections  represented  roughly  on  the  average  about  18  per- 
sons affected  by  the  law  for  each  inspection;  it  covered  in  addition  913 
inspections  made  on  complaint.  How  inadequate  this  inspection  is 
may  be  seen  from  the  fact  that  there  are  doubtless  a  hundred  thousand 
mercantile  establishments'  in  New  York  City  alone,  and  many  aspects 
of  the  mercantile  law  apply  to  bowling  alleys  and  places  of  amusement, 
with  which  the  department  can  only  deal  on  complaint,  unless  it  is  fur- 
nished with  a  very  large  stafif  of  inspectors.  It  is  difficult  to  say  how 
far  the  department  has  proven  itself  efHcient  in  developing  ingenious 
plans  of  so-called  "  sample  inspections  "  in  selected  areas,  which,  if  fol- 
lowed by  vigorous  prosecution,  might  serve  to  strike  terror  in  the  ranks 
of  the  violators  of  the  law.  Such  a  plan  would  depend,  of  course,  for 
its  success  upon  the  magistrates  and  courts  backing  up  the  department 
and  punishing  violations  with  prompt  and  severe  sentences,  and  this  they 
have  not  done.  On  the  contrary,  the  department  has  been  greatly  ham- 
pered, not  merely  by  the  legislature  failing  to  supply  adequate  appro- 
priations for  enough  inspectors,  but  by  the  indift'erence  and  lack  of 
support  of  the  magistrates  and  courts. 

Home  Work 

The  operations  of  the  division  for  the  inspection  of  home  work  have 
been  even  less  satisfactory,  from  the  point  of  view  of  any  guarantee 
that  the  purposes  of  the  law  are  being  accomplished.  The  report  of 
the  commissioner  of  labor  for  1913  gives  an  account  of  the  work  of  this 
division,  as  far  as  the  regulation  of  work  done  in  tenement  houses  in 
Greater  New  York  goes.  There  were  outstanding  on  October  1,  1913, 
11,183  licenses;  during  the  previous  year,  1,587  licenses  were  cancelled, 
and   198  revoked  for  sanitary  causes.     There  does  not  seem  to  be  the 

171 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

necessary  co-operation  with  the  health  authorities,  inasmuch  as  this 
inspection  of  tenement  houses  has  to  do  primarily  with  sanitary  condi- 
tions. If  home-work  inspection  were  transferred  to  the  corps  of  ordi- 
nary sanitary  inspectors,  this  division  of  the  bureau  in  the  labor  depart- 
ment with  its  meagre  force  might  be  used  as  a  flying  squadron  or  detec- 
tive bureau  to  supplement  work  which  is  more  properly  part  of  the  duty 
of  regular  health  inspection,  and  might  eventually  be  left  almost  entirely 
to  the  health  department. 

The  other  aspect  of  home-work  inspection  which  results  in  the 
detection  of  children  who  are  truants  from  school  should  in  like  manner 
lead  to  better  co-operation  with  the  bureau  of  school  attendance  and  the 
ultimate  reliance  upon  the  school  authorities  for  this  work  without  any 
necessity   for  the  assistance  of  the  labor  department. 

Workmen's  Compensation 

Where  the  state  has  assumed  responsibihty  for  the  administration  of 
a  system  of  workmen's  compensation,  there  exists  not  only  the  need  for 
an  administrative  organization  to  enforce  the  law,  but  especially  one 
that  will  work  to  prevent  expense  and  reduce  the  cost  of  compensation 
to  employers,  as  well  as  minimize  the  burdens  which  injured  workmen 
must  bear  for  which  no  compensation  can  be  made.  Alany  states,  like 
New  York,  have  created  a  separate  commission  or  board  for  this  purpose. 
In  some  states  the  commissions  have  purely  supervisory  powers  and  exist 
largely  for  the  collection  of  information  while  the  courts  enforce  the  law. 
In  other  states,  the  commissions  are  quasi-judicial  bodies  and  adjudicate 
claims. 

The  New  York  Workmen's  Compensation  Commission  was  appointed 
in  March,  1914,  and  held  its  first  meeting  on  March  30th.  The  com- 
pulsory features  of  the  statute  became  effective  July  1,  1914,  so  that  the 
commission  had  but  three  months  in  which  to  prepare  for  a  complex 
system  of  insurance,  for  which  there  was  httle  experience  and  precedent. 
The  business  to  be  handled  administratively  comprised  the  industrial 
hazard  in  the  greatest  industrial  state  in  the  union,  the  annual  payroll 
of  whose  workers  aggregated  $1,000,000,000,  distributed  in  180,000 
employing  industries  and  covering  2,000,000  workmen. 

The  law  required  the  main  office  of  the  commission  to  be  located  at 
Albany,  where  inadequate  space  was  obtainable.  The  preliminary  survey 
indicated  that  three-fourths  of  the  business  of  the  commission  would 
have  to  be  done  with  employers  and  employees  located  within  Greater 
New  York.  Therefore,  a  branch  office  of  large  proportions  was  neces- 
sarily established  in  this  city,  and  has  remained  the  principal  branch  office 
of  the  commission. 

It  was  found  necessary  to  divide  the  work  of  the  commission  into 
bureaus  having  to  do  with  claims,  with  accounts,  with  the  state  insurance 

172 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

tuncls  and  other  subjects.  The  state  was  divided  into  nine  districts  and 
deputies  located  in  charge  of  each  at  the  following  points:  Buffalo, 
Rochester,  Syracuse,  Albany,  aside  from  the  main  office,  Poughkeepsie, 
The  Bronx,  Brooklyn,  and  one  each  in  central  and  lower  New  York  City 
districts.  One  additional  deputy  was  appointed,  but  not  assigned,  and 
on  January  1,  1915,  an  additional  deputy  was  appointed  and  assigned 
to  the  main  office,  thus  making  11  in  all.  These  serve  as  representatives 
of  the  commission  in  the  different  sections  of  the  state  to  explain  the  pro- 
visions of  the  law,  to  exercise  delegated  judicial  functions  and  to  expedite 
the  handling  of  claims  through  advice  and  through  the  direction  of  the 
investigators  in  each  district  office.  There  was  attached  a  hearing  steno- 
grapher, an  interpreting  clerk,  a  stenographic-filing  clerk,  a  representative 
of  the  state  insurance  fund  and  a  junior  clerk  or  page,  whose  salaries, 
together  with  that  of  the  deputy  and  the  rent  of  the  office  aggregate  about 
$10,000  per  year.  Work  increased  in  some  offices  to  an  extent  that 
required  the  appointment  of  an  assistant  deputy,  and  five  such  assistant 
deputies  were  placed  where  most  needed.  Thirteen  hundred  cases  were 
referred  to  deputies,  for  investigation  and  hearing,  prior  to  February 
1,  1915,  the  end  of  the  period  reviewed  in  the  first  annual  report  covering 
ten  months  of  the  existence  of  the  commission.  The  organization  of  the 
commission  is  described  and  charted  on  page  269  ff.  of  the  organization 
and  functions  report. 

The  commission  hears  claims  at  Albany  one  day  a  week;  at  Syra- 
cuse, Rochester  and  Buffalo  one  day  every  other  week,  and  at  the  New 
York  branch  office  every  day  excepting  Saturday. 

Deputy  commissioners  have  heard  and  disposed  of  many  calendars, 
thus  relieving  the  commission  for  the  consideration  of  the  more  difficult 
cases,  but  their  findings  are  not  binding  and  effective  until  approved  by 
the  commission  itself. 

The  arbitration  feature  of  the  law  is  a  dead  letter  and  was  invoked 
in  only  one  case.  There  is,  however,  an  element  of  arbitration  in  the 
public  hearings. 

The  medical  division  is  closely  related  to  the  claims  division  and  con- 
sists of  three  physicians,  one  of  whom  is  medical  adviser  to  the  state 
insurance  fund,  the  other  two  confining  their  work  to  claims  to  be  paid 
by  other  insurance  carriers.  The  division  has  a  surgical  staff  for 
examination  of  claims,  which  is  done  at  the  request  of  the  claimants  or 
on  motion  of  the  commission  or  at  the  request  of  the  claims  department, 
and  is  the  best  agency  for  determining  the  nature  and  extent  of  dis- 
ability. The  division  also  examines  reports  of  attending  physicians  and 
passes  on  fee  bills  of  attending  physicians.  One  result  of  the  compen- 
sation laws  has  been  the  installation  by  employers  of  first  aid  equipment 
at  trifling  cost.     Probably  70  per  cent,  of  all  accidents  are  preventable. 

173 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

In  the  New  York  office  over  2,000  physical  examinations  of  claimants 
have  been  made,  and  claim  papers  have  been  examined  for  diagnosis  and 
time  of  disability  to  the  number  of  3,010. 

The  legal  bureau  has  had  79  cases  on  appeal  in  the  Appellate  Divi- 
sion of  the  Supreme  Court;  95  cases  in  which  complaints  were  made 
that  employers  failed  to  provide  compensation  insurance;  227  cases  in 
which  awards  had  been  made  and  the  employers  had  no  insurance  which 
cases  were  referred  to  legal  department  for  collection  of  award;  49  cases 
against  railroad  companies  involving  questions  of  the  law  of  interstate 
commerce;  207  miscellaneous  claims  referred  for  opinion. 

The  commission  reports  that  the  State  Insurance  Fund  is  operating 
satisfactorily,  and  the  commission  hopes  that  no  legislation  will  be 
enacted  to  hinder  the  extension  of  the  State  Insurance  Fund,  which,  not- 
withstanding its  inability  to  command  solicitors  and  the  usual  instru- 
ments of  business  acquisition,  has  done  more  business  than  any  other 
insurance  carrier  except  one. 

The  actuarial  bureau  has  work  wholly  connected  with  the  work  of 
the  State  Insurance  Fund,  and  the  statistical  bureau  analyzes  claims  to 
discover  causes  of  accidents  and  analyzes  costs. 

Duplication  of  Inspection  and  of  Work 

Inasmuch  as  the  adequacy  of  enforcement  of  most  of  the  labor  law 
depends  entirely  on  the  completeness  and  efficiency  of  regular  systematic 
inspection  by  disinterested  and  well-trained  officials,  the  charge  of  dupli- 
cation is  all  the  more  serious.  Already  there  is  ample  ground  for  this 
charge  to  be  found  in  an  analysis  of  the  work  of  the  factory  inspection 
bureau,  and  the  inspection  department  of  the  Workmen's  Compensation 
Commission.  And  this  duplication  will  become  more  serious  as  the  in- 
spection department  of  the  Workmen's  Compensation  Commission  be- 
comes better  organized.  The  administrative  problems  in  the  enforcement 
of  many  of  the  general  provisions  of  the  labor  law  and  those  of  the  com- 
pensation law  are  identical.  They  have  a  common  purpose  also  in  seek- 
mg  to  bring  about  prevention  as  their  major  task,  rather  than  merely  the 
detection  of  crime  or  violations.  There  is  also  duplication  of  work  in 
the  reporting  of  accidents  and  certain  statistical  information  which  it  is 
necessary  to  ask  employers  to  furnish  the  authorities  who  administer  the 
general  labor  laws  and  those  who  are  dealing  with  the  matter  of  com- 
pensation for  industrial  accident.  Where  separate  authorities  have  been 
set  up  in  other  states  the  desire  for  the  elimination  of  the  duplication 
referred  to  has  led  to  a  consolidation  of  the  inspectional  work  of  those 
departments.  A  recent  report  of  a  legislative  committee  in  Missouri 
(December,  1914),  recommending  the  enactment  of  a  compensation  law 
also  suggested  the  creation  of  an  industrial  commission  to  administer 
it  and  the  other  labor  laws  of  the  state  jointly.     Among  other  things,  the 

174 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

committee  says :  "  With  the  enactment  of  a  workman's  compensation  law 
comes  a  duty  to  provide  the  machinery  for  reducing  as  far  as  possible 
the  number  of  industrial  accidents  and  correspondingly  reducing  their 
hardships  to  employees  and  their  cost  to  employers.  For  some  time  there 
has  been  the  feeling  that  in  equipping  their  plants  employers  had  been 
paying  too  little  attention  to  accident  prevention,  and  it  is  only  within 
the  last  few  years  that  special  study  and  inventive  genius  has  been  de- 
voted to  this  field  *  *  *  The  body  fitted  to  prescribe  safety  rules 
and  regulations  is  the  body  which,  through  factory  inspection  and  daily 
hearings  of  accident  cases,  would  know  from  actual  experience  what  is 
reasonable  and  proper."* 

Inadequate  Machinery  and  Pourrs  of  Existing  Agencies 

The  number  of  inspectors  to  cover  all  the  establishments  and  condi- 
tions with  which  the  labor  department  has  to  deal,  always  has  been  and 
probably  always  will  be  inadequate.  Therefore  the  greater  is  the  need  for 
improvement  in  the  organization  and  skill  in  the  supervision  of  their 
work.  The  educational  work  of  the  inspector  and  the  publicity  given  to 
the  law  and  to  demonstrations  of  its  reasonableness  in  language  that  every 
employer  and  employee  can  understand,  become  increasingly  important  as 
the  work  of  the  department  becomes  more  complex  and  dif^cult.  Not 
only  is  the  present  lack  of  consolidation  of  functions  in  the  industrial 
board  and  the  office  of  the  commissioner  of  labor  incomplete  and  inade- 
quate but  two  definite  tasks  for  the  proper  fulfillment  of  the  industrial 
relations  function  are  specially  weak  and  partially  unprovided  for.  These 
are  first,  the  protection  of  employers  and  employees,  or  the  function  of 
rendering  aid  to  employees  who  have  reasonable  claims  against  employers 
or  are  the  victims  of  exploitation  and  injustice  at  the  hands  of  strong 
corporate  organizations  of  employers,  and  likewise  the  function  of  ren- 
dering aid  to  individual  employers  in  determining  the  legality  of  the  tac- 
tics and  acts  of  trade  unions  and  strong  corporate  organizations  of  em- 
ployees when  they  exceed  their  legal  rights  and  try  to  oppress  or  intimi- 
date the  employer.  Secondly,  the  provision  for  industrial  councils  either 
state-wide  for  industry  as  a  whole  or  for  separate  or  local  industries  ac- 
cording to  trades  or  geographical  areas,  for  the  purpose  of  bringing  face 
to  face  the  partisan  representatives  of  employers'  and  employees'  organi- 
zations and  placing  before  them  for  discussion  and  advice  the  plans  of  the 
labor  department  in  the  interpretation  and  enforcement  of  the  law,  also 
proposals  of  rules  and  orders  extending  and  applying  the  labor  law  to 
specific  cases.  Both  of  these  tasks  are  partially  provided  for,  the  first 
through  the  industrial  and  immigration  bureau  of  the  department  of  labor, 


*For  this  and  other  evidence  of  similar  import,  see  brief  in  support  of  industrial 
commission  bill  submitted  by  American  Association  for  Labor  Legislation  to 
Governor  Whitman  at  a  public  hearing  on  the  Spring  Bill,  May  5,  1915. 

175 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

which,  however,  confines  its  efforts  chiefly  to  aliens,  and  the  second 
through  the  voknitary  action  of  the  industrial  hoard  in  the  organization 
of  the  state  industrial  board  committees  and  sub-committees  for  the 
initial  preparation  of  rules  and  regulations  in  the  several  departments  of 
its  work  which  has  been  divided  as  follows : 

Fire  hazards 

Ventilation  and  lighting 

Sanitation  and  comfort 

Dangerous  machinery 

Dangerous  trades  and  processes 

Bakeries  and  confectioneries 

Foundries 

Mines,  tunnels  and  quarries 
These  committees  contain  persons  regarded  as  having  expert  knowl- 
edge in  these  respective  subjects  but  they  are  not  frankly  organized  on 
the  basis  of  partisan  representation  of  conflicting  interests  with  a  view  to 
their  reconciliation  in  advance  of  the  enactment  of  standards  into  law  or 
rules  and  regulations  having  the  force  of  law.  They  do  not  provide 
adequately  at  least  the  machinery  for  the  new  methods  of  compromise 
and  education  in  order  to  secure  a  higher  degree  of  compliance  with 
desirable  standards  than  can  be  secured  with  inadequate  inspection 
through  reliance  on  the  policeman's  club  and  prosecutions  alone. 

Part  VII. — Organization  for  Administration  of  Public  Utilities 
Regulation 
Under  the  present  organization  of  the  state  government,  the  regula- 
tion of  public  utilities  is  controlled  through  the  agency  of  the  two  public 
service  commissions,  the  commissions  each  consisting  of  five  members 
appointed  by  the  governor  with  the  advice  and  consent  of  the  senate 
for  overlapping  terms  of  five  years,  and  each  receiving  a  salary  of 
$15,000  per  year. 

Functions  of  the  Public  Service  Commission,  First  District 

The  commission  of  the  1st  district  is  charged  with  the  regulation 
and  supervision  of  common  carriers,  gas,  electric  and  steam  companies, 
operating,  wholly  or  in  part,  within  the  counties  of  New  York,  Kings, 
Queens,  Richmond  and  the  Bronx,  as  provided  for  in  the  public  service 
commissions  law;  supervision  of  the  protection,  elimination  and  rear- 
rangement of  grade  crossings;  issuance  of  certificates  of  public  con- 
venience and  necessity  in  connection  with  the  construction  of  new- 
railroads;  approval  of  assignments  or  transfers  of  franchises,  approval 
of  abandonment  of  routes  and  approval  of  change  of  motor  powder,  under 
the  Railroad  Law ;  supervision  of  the  construction,  equipment,  operation 
and   maintenance  of   additional    rapid   transit    facilities    for   the   city   of 

176 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

New  York  and  the  granting  of  rapid  transit  franchises  as  provided  for 
in  the  Rapid  Transit  Act. 

Functions  of  Public  Service  Commission,  Second  District 

The  pubhc  service  commission  of  the  2d  district  is  charged  with 
the  regulation  and  supervision  of  all  common  carriers  (other  than  steam- 
boat lines)  gas,  electric,  steam  heating  and  stock  yard  corporations, 
operating  within  the  state,  except  those  operating  wholly  within  the 
counties  comprising  Greater  New  York,  as  provided  for  in  the  public 
service  commissions  law;  supervision  of  the  protection,  elimination  and 
rearrangement  of  grade  crossings;  issuance  of  certificates  of  public  con- 
venience and  necessity  in  connection  with  the  construction  of  new  rail- 
roads; approval  of  assignments  or  transfer  of  franchises;  approval  of 
abandonment  of  routes,  under  the  Railroad  Law;  supervision  and  regu- 
lation of  telephone  and  telegraph  corporations  possessing  physical  property 
of  a  valuation  of  $10,000  or  over,  operating  within  the  state  (including 
Greater  New  York),  as  provided  for  in  the  public  service  commissions 
law. 

Common  Powers  Exercisea- 

Each  commission  has  power  to  compel  attendance  of  witnesses ; 
regulate  the  conduct  and  management  of  common  carriers  and  transpor- 
tation corporations ;  hear  and  investigate  complaints ;  approve  contracts 
and  leases ;  fix  standards  of  heating  value,  illuminating  power  and  purity 
of  gas ;  inspect  gas  and  electric  meters ;  prescribe  uniform  methods  of 
accounting ;  regulate  the  issuance  of  securities ;  require  special,  periodical 
reports ;  investigate  accidents ;  take  summary  proceedings  to  discontinue 
violations  of  law  or  the  orders  of  the  commission.  A  counsel,  secretary 
and  such  experts,  inspectors,  clerks  and  other  employees  as  may  be  neces- 
sary are  appointed  by  the  commissions.  The  commission  of  the  first 
district  has  jurisdiction  over  the  public  utilities  operating  within  the  cor- 
porate limits  of  the  City  of  New  York,  with  the  exception  of  the 
telephone  and  telegraph  companies,  which  are  controlled  throughout 
the  state  by  the  commission  of  the  second  district.  The  commission  of 
the  second  district  has  general  supervision  of  the  public  utilities  in  the  re- 
mainder of  the  state.  Complete  description  of  the  organization  and  per- 
sonnel of  these  commissions  may  be  found  in  the  report  on  the  organiza- 
tion and  functions  of  the  state  government,  pages  153  to  227. 

Critical  Appraisal  of  the  Organisation  and  Present  Method  of  Regulating 
Public   Utilities — Lack  of  Means  for  Locating  and  Enforcing 
Ex  ecu  tive  R  esp  o  nsibility 
With  the  present  system  of  appointment  and  removal  it  is  impos- 
sible to  enforce  executive  responsibility.   The  governor  of  the  state  cannot 

177 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

be  held  responsible  for  the  official  acts  of  the  commissioners,  yet  popular 
sentiment  measures  the  efficiency  of  a  governor's  administration  not  a 
little  by  the  efifectiveness  of  the  regulation  of  the  public  utilities.  Under 
normal  circumstances  a  governor  during  his  incumbency  would  have  the 
appointment  of  but  two  members  of  each  commission.  He  has  no  control 
over  the  acts  of  the  commission  except  in  the  exercise  of  his  right  to 
remove  commissioners  from  office  upon  the  substantiation  of  formal 
charges  alleging  incompetency,  inefficiency  or  misconduct  in  office,  and 
this  power  is  ineffective  for  the  direction  and  control  of  administration. 
It  is  conceded  that  in  the  administration  of  the  public  utilities  regu- 
lation, which  involves  the  control  over  hundreds  of  millions  of  dollars 
of  invested  capital,  there  must  be  a  strong  factor  of  stability  in 
policy  and  program,  yet  at  the  same  time  if  is  highly  desirable  that  the 
executive  officer  of  the  state  have  available  some  method  for  impressing 
on  the  public  service  commissions  the  policies  of  his  administration. 
Some  method  must  also  be  provided  for  enforcing  the  opinions  of  the 
people  upon  the  public  service  commissions  and  this  cannot  be  effected 
through  the  removal  rights  now  given  to  the  governor.  A  difference  of 
opinion  in  administrative  matters  between  the  public  service  commissions 
and  the  administration  elected  by  the  people,  and  presumably  held 
responsible  by  them,  does  not  imply  inefficiency,  incompetency  or  mis- 
conduct on  the  part  of  the  commissioners.  What  is  needed  is  the  estab- 
lishment of  a  responsible  and  responsive  body  for  the  regulation  of  the 
public  utilities  in  place  of  the  existing  organization  which  is  essentially 
an  independent  body  with  both  legislative  and  administrative  powers. 

A  Question  of  Geographic  Distribution 

It  was  evidently  the  intention  of  the  drafters  of  the  present  public 
service  law  to  recognize  the  differences  in  the  public  utilities  problems 
encountered  in  the  City  of  New  York  and  those  of  the  balance  of  the 
state,  yet  these  problems,  in  so  far  as  they  affect  the  well-being  of  the 
citizens  of  New  York,  are  not  confined  within  the  corporate  limits  of  the 
city,  but  extend  throughout  the  metropolitan  district  surrounding  the  city. 
The  lack  of  jurisdiction  of  the  commission  of  the  first  district  over  the 
transportation  lines  in  Westchester,  Nassau,  and  Suffolk  counties  has 
interfered  with  the  promulgation  and  carrying  out  of  a  complete  New 
York  City  transit  program. 

Tivo  Distinct  Problems  of  Utilities  Regulation  Not  Recognized  by  the 
Present  Laiv 

To  those  who  have  followed  the  history  of  the  public  service  com- 
missions, particularly  that  of  the  first  district,  and  have  reviewed  their 
administrative  mistakes,  or  alleged  mistakes,  it  is  obvious  that  many  of 
these  difficulties  have  arisen  from  the  confusion  of  the  two  main  func- 

178 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

tions  of  regulation,  i.  e.,  the  promulgation  of  orders,  and  the  enforcement 
of  the  orders  after  their  issuance.  These  two  activities  are  fundamentally 
different,  and  should  be  so  approached  in  providing  an  organization  for 
their  conduct.  The  promulgation  of  orders  and  regulations  and  the  action 
on  complaints  are  primarily  adjudicative  and  legislative  functions,  while 
the  administration  of  inspections  and  enforcement  of  orders  after  they 
have  been  issued  is  an  administrative  function.  The  former  demands  a 
type  of  mind  which  has  too  often  in  private  and  public  business  been 
found  unfitted  for  the  irritating  routine  of  an  administrative  department. 
The  enforcement  of  orders,  whch  is  primarily  a  question  of  inspection 
and  cj[uasi  police  duty,  is  usually  best  handled  by  a  type  of  man  not  par- 
ticularly adapted  for  adjudicative  proceedings.  Moreover,  the  adjudica- 
tive and  legislative  side  of  public  utilities  regulation  could  well  be  handled 
more  or  less  independently  of  the  administration  as  under  the  present 
system,  whereas  it  would  be  highly  desirable  to  hold  an  executive  directly 
responsible  for  the  enforcement  of  orders,  after  they  are  issued,  through 
providing  that  the  work  be  handled  by  an  administrative  department. 
Without  a  clear-cut  distinction  of  these  two  duties  in  the  organization  of 
the  public  service  commissions,  it  is  almost  inevitable  that  one  of  the  two 
will  be  slighted.  The  history  of  the  public  service  commissions  shows 
that  of  the  two  it  is  the  enforcement  of  the  rules  after  they  have  been 
issued  formally  by  the  commission  which  has  received  the  smaller  amount 
of  attention. 

The  State  Should  Not  Construct  City  Owned  Subways 

The  principle  of  home  rule  is  directly  related  to  the  question  of 
jurisdiction  of  the  public  service  commission  of  the  first  district  where 
subways  paid  for  by  the  city  and  to  be  operated  by  the  city's  agents  are 
designed  and  constructed  by  a  state  agency.  Just  why  the  public  service 
commission  should  be  required  to  design  and  construct  the  local  subways 
and  put  themselves  in  a  position  to  raise  differences  of  opinion  between 
the  state  and  city  officials  is  a  question  to  be  answered  by  those  w*ho 
are  responsible  for  the  public  service  bill.  It  would  be  unwise 
no  doubt  to  interrupt  the  work  of  completing  the  present  subway 
system  by  changing  the  control  over  this  work  from  the  state  to  the 
city,  but  it  would  be  still  more  unwise  to  continue  the  present  practice  for 
future  work.  No  matter  what  arbitrary  right  may  be  given  a  public 
service  commission  for  the  construction  of  the  city's  subways,  it  would 
be  impossible  to  give  the  complete  control  of  this  work  to  the  state  com- 
mission without  breaking  down  entirely  the  jurisdiction  of  the  city  over  its 
finances,  so  that  the  present  subways,  although  ostensibly  constructed  by 
the  public  service  commission,  are  really  the  result  of  a  co-operative 
effort  of  the  public  service  commission  and  state  officials  and  the 
officials  of  the  city  government,  most  of  which  co-operation  was  effected 

179 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

by  voluntary  efforts  of  public  service  commission  engineers  and  other 
officials  rather  than  by  the  exercise  of  the  financial  rights  of  the  city. 

Tzi'o  Cornmissions  Unnecessary 

If  the  construction  of  the  city's  subways  in  New  York  City  is 
eliminated  from  the  jurisdiction  of  the  public  service  commission,  there  is 
little  reason  left  for  having  two  separate  commissions  as  legislative  and 
judicial  bodies.  By  this  it  is  not  meant  that  it  would  not  be  desirable  to 
retain  two  executive  departments  or  divisions  for  inspection  and  the 
current  enforcement  of  rules  and  orders  after  their  issuance.  Adminis- 
trative efficiency  is  not  infrequently  made  more  effective  by  geographical 
subdivision  of  responsibility,  but  this  need  not  apply  to  the  legislative 
powers.  Administrative  efficiency  and  definition  of  responsibility  would 
probably  demand  the  districting  of  the  state  for  the  enforcement  of 
orders  and  the  setting  aside  of  the  metropolitan  district  of  New  York 
City  from  the  remainder  of  the  state  would  be  a  logical  apportionment. 

For  the  adjudication  of  public  utilities  questions  and  for  the  formu- 
lation of  orders  governing  the  operation  of  these  utilities,  two  commis- 
sions are  unnecessary  and  in  fact  tend  to  confusion.  The  control  of 
capitalization  and  organization  of  pubHc  utilities  corporations,  together 
with  the  rates  for  service,  is  as  an  important  part  of  the  commissions' 
duties  as  the  regulation  of  the  number  of  cars  on  a  particular  surface 
line  and  as  the  determination  of  the  number  of  seats  which  must  be 
provided  on  the  subway  and  elevated  lines  of  New  York  City.  These 
questions  of  capitalization,  organization  and  rates  must  be  determined 
on  established  principles,  and  such  principles  unquestionably  should  be 
standards  for  the  entire  state.  The  present  organization,  whereby  two 
commissions  of  independent  but  co-ordinate  powers  have  been  established, 
has  not  facilitated  such  standardization.  It  is  also  conceivable  that  the 
members  of  a  public  service  commission  having  jurisdiction  over  the 
entire  state,  in  so  far  as  the  issuance  of  orders  is  concerned,  would  be 
broadened  by  meeting  problems  in  different  sections  of  the  state. 

I\o  Control  Over  Inland  Waterways 

One  fundamental  weakness  in  the  present  jurisdiction  of  the  public 
service  commissions  is  their  lack  of  all  control  over  the  common  carriers 
on  the  inland  waters  of  the  state  that  compete  with  the  railroads  over 
which  the  commissions  have  almost  complete  jurisdiction.  If  proper 
control  of  the  transportation  problem  is  to  be  obtained  through  the  agency 
of  the  Public  Service  Commission,  it  is  essential  that  the  jurisdiction  of 
the  department  comprehend  all  of  the  transportation  interests. 

Although  the  question  of  control  by  the  public  service  commission 
over  the  steamboat  and  barge  lines  is  important  to-day,  it  will  be  of  much 
greater  importance  on  the  completion  of  the  barge  canal.     This  great 

180 


ADMINISTRATION    OF    PUBLIC    SERVICE    FUNCTIONS 

enterprise,  which,  upon  completion,  will  have  cost  the  state  more  than 
$130,000,000,  will  need  careful  management  in  order  to  become  a  profit- 
able enterprise.  One  of  the  important  factors  in  such  management 
will  be  the  control  over  canal  boat  rates ;  the  only  agency  available  for 
the  exercise  of  such  regulative  control  is  the  public  service  commission, 
v/hich  is  to-day  helpless  on  account  of  lack  of  jurisdiction. 

Part  VIII. — Organization    for   the   Regulation    of   Banking   and 

Insurance 
The  present  control  over  the  banking  and  insurance  companies  of 
the  state  is  effected  through  the  agency  of  two  independent  departments : 

1.  The  banking  department. 

2.  The  insurance  department. 

Functions  of  the  Banking  Department 

This  department  is  charged  with  the  general  supervision  of  (a)  banks, 
(b)  trust  companies  (c)  savings  banks,  (d)  loan,  mortgage  and  invest- 
ment companies,  (e)  building,  mutual  loan  and  cooperative  savings 
associations,  and  (f)  credit  unions,  operating  under  the  laws  of  the  state 
of  New  York.  The  laws  regulating  the  conduct  of  these  institutions 
are  enforced  through  periodic  investigations  by  the  examining  staff  of  the 
department.  The  banking  department  also  prepares  an  annual  digest 
of  the  reports  of  the  various  financial  institutions  of  the  state  and  reports 
the  same  in  summary  form  to  the  legislature.  The  organization  and  per- 
sonnel of  this  department  will  be  found  on  pages  101  to  107  inclusive 
of  the  report  on  organization  and  functions  of  the  state  government. 

Functions  of  the  Fnsurance  Department 

This  department  is  charged  with  the  execution  of  the  laws  of  the 
state  relating  to  insurance.  The  department  has  supervisory  control  over 
all  insurance  companies,  brokers  and  agencies  transacting  business  in 
the  state.  It  has  custody  of  the  securities  of  life  and  casualty  companies 
of  this  state  and  of  other  countries  and  of  fire  and  marine  insurance 
companies  of  foreign  governments  deposited  with  it  for  the  protection 
of  policy  holders  residing  in  the  United  States ;  examines  into  the  affairs 
of  corporations,  associations,  societies  and  orders,  transacting,  control- 
ling or  organizing  an  insurance  business  in  the  state ;  receives  reports 
under  oath  at  regular  intervals  from  such  corporations,  etc.,  abstracts 
of  which  are  to  be  included  in  the  annual  reports  to  the  legislature ;  acts 
as  attorney  for  insurance  companies  organized  under  the  laws  of  other 
states  or  countries  in  order  that  process  in  any  action  or  proceeding 
against  such  companies  may  be  served  promptly ;  values  annually  all 
outstanding  policies,  additions  thereto,  unpaid  dividends  and  all  other 
obligations  of  every  insurance  corporation  doing  business  in  the  state. 
The  department  is  empowered  in  certain  cases,  after  due  process  of  law, 

181 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

to  take  possession  of  an  insurance  corporation  and  conduct  its  business 
as  the  exigencies  of  the  case  may  demand.  The  department  is  empowered 
to  refuse  admission  to  any  company,  corporation  or  association  applying 
for  permission  to  transact  insurance  business  in  the  state  whenever  such 
refusal  to  admit  shall  be  for  the  best  interests  of  the  people  of  the 
state. 

Defects  in  Organization  for  Purposes  of  Administration 

The  present  departments  of  banking  and  insurance  are  subject  to 
criticism  not  so  much  on  account  of  inadequate  internal  organization  as 
of  their  dissociation  which  prohibits  securing  certain  advantages  that 
would  be  made  possible  through  amalgamation  of  the  two  departments. 

The  work  of  the  staiT  auditors  and  examiners  of  the  two  departments 
is  closely  related,  yet  the  complete  dissociation  of  the  two  bodies,  as  the 
departments  are  now  organized,  necessitates  certain  duplication  in  force 
and  effort  and  obviously  narrows  the  perspective  of  both  branches. 

It  is  also  a  fact  that  certain  trust  companies  throughout  the  state  are, 
under  the  present  practice,  required  to  report  to  both  the  banking  and 
the  insurance  departments  and  are,  therefore,  subject  to  the  general 
supervision  and  discipline  of  two  regulating  departments.  This  is 
obviously  unfair  to  the  trust  companies  and  causes  a  needless  waste  of 
public  money. 

From  the  standpoint  of  locating  and  enforcing  executive  responsi- 
bility without  impairing  the  technical  and  professional  service  of  the 
bureaus,  the  present  organization  is  also  subject  to  criticism.  The  admin- 
istrative heads  in  direct  supervision  of  the  forces  engaged  in  regulating 
banks  and  insurance  companies  should  unquestionably  be  technical  men 
of  the  highest  order.  The  actuarial  accounting  and  examining  positions 
and  the  positions  of  supervision  over  actuarial  accounting  and  examining 
stafifs  in  these  departments  also  require  men  of  the  very  highest  order 
and  are  positions  which  require  continuity  of  service  for  effective  admin- 
istration. 

Regulation  of  banking  and  insurance  companies  occupies  a  large  place 
in  public  thinking  and  the  administration  of  such  regulations  is  closely 
related  to  the  enforcement  of  policies  for  which  the  governor  is  held 
responsible  by  public  opinion,  though  not  as  a  matter  of  constitutional 
and  statute  law.  This  would  seem  to  demand  that  he  have  certain  powers 
which  will  enable  the  legislature  and  the  electorate  to  hold  executives  in 
general  charge  of  this  work  to  account  for  their  stewardship.  At  the 
present  time,  however,  the  only  method  available  for  the  governor  to 
impress  his  official  personality  on  the  administration  of  these  departments 
is  to  appoint  men  to  the  supervisory,  technical  and  professional  positions 
in  them  and  make  them  parts  of  a  system  of  irresponsible  party  politics. 

182 


CHAPTER   XIII 
THE  CONTENT  AND  FORM  OF  THE  CONSTITUTION 

The  word  constitution  came  into  use  in  England  during  the  struggles 
for  representative  government  that  first  found  national  expression  in 
signing  of  Magna  Charta.  In  England  the  word  constitution  came  to 
mean  the  law  governing  the  government.  Only  the  agreement  between 
king  and  barons  and  the  statutes  were  written.  Most  of  the  rules  of 
practice  were  in  the  nature  of  customs  that  were  given  the  sanction  of 
law ;  so  that  England  is  said  to  have  an  unwritten  constitution.  But  so 
does  England  have  its  common  or  unwritten  law. 

The  Notion  that  the  Constitution  is  Fundamental 

Frequently  it  is  L"i(!  that  the  constitution  is  the  fundamental  law. 
This  means  nothing;  or  more  strictly  speaking,  it  means  anything  that 
the  person  using  the  expression  may  wish.  The  law  of  private  prop- 
erty is  fundamental- — the  law  of  self-protection  is  fundamental,  just 
as  fundamental  as  the  law  determining  the  rights  of  the  crown.  There 
is  only  one  sense  in  which  the  word  fundamental  distinguishes  Eng- 
lish constitutional  law,  and  that  is  in  the  sense  that  government  is 
fundamental  to  all  law  and  consequently  to  all  rights.  Applying  this 
idea  of  fundamental  law  to  the  constitution  it  means  only  that  it  is  made 
up  of  the  conventions  or  institutes  by  which  the  government  is  estab- 
lished and  operated — the  law  governing  the  government,  as  distinguished 
from  the  law  governing  persons  and  property  not  of  the  government. 

The  American  Notion  of  the  Constitution 

Although  in  constitutional  discussions  in  the  United  .States  the  same 
idea  is  commonly  conveyed,  there  is  no  warrant  for  it.  There  is  nothing 
in  this  country  that  distinguishes  what  we  call  constitutional  law  from 
statutory  law  except  the  method  of  enactment.  Even  ibis  distinction 
was  not  made  initially. 

As  a  profound  student  of  American  state  constitutions.  Professor 
Dodd  has  said  :  "  In  1776  and  for  some  time  thereafter  a  relatively  slight 
difference  existed  between  the  forms  of  constitutional  and  statutory  enact- 
ment." The  so-called  "  first  written  constitution  of  the  world,"  "  the 
Fundamental  Orders  of  Connecticut,"  drawn  up  in  1639,  was  not  a  consti- 
tution in  the  sense  that  it  could  be  altered  only  by  extraordinary  process, 
because  it  was  frequently  changed  by  later  legislative  enactment.  Three 
of  the  first  state  constitutions:  Delaware  (1776),  South  Carolina  (1778), 
and  Maryland  (1776),  permitted  the  legislature  under  certain  restrictions 
to  alter  the  fundamental  law.     Delaware  declared  that  some  portions  of 

183 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

the  constitution  should  never  be  changed,  and  added  that  "  no  other  part 
of  this  constitution  shall  be  altered,  changed,  or  diminished  without  the 
consent  of  five  parts  in  seven  of  the  assembly  and  seven  members  [out 
of  nine]  of  the  legislative  council."  South  Carolina  provided  that  "  no 
part  of  this  constitution  shall  be  altered  without  notice  previously  given 
of  ninety  days,  nor  shall  any  part  of  the  same  be  changed  without  the 
consent  of  a  majority  of  the  members  of  the  senate  and  house  of  repre- 
sentatives." 

Maryland  rec[uired  the  approval  of  two  successive  legislatures  to  vali- 
date any  alteration  in  the  constitution.  Six  of  the  constitutions  of  the 
revolutionary  period  contained  no  provision  at  all  for  amendment. 

No  Difference  in  Sanction  of  Early  Constitutions 

Not  only  did  some  of  the  states  provide  for  the  enactment  of  con- 
stitutional law  by  the  legislature  (subject  to  certain  restrictions)  but 
other  states  in  which  no  such  provision  existed  frequently  permitted 
legislative  changes  without  extraordinary  process.  The  convention  which 
drafted  the  first  Virginia  constitution  expressly  conferred  upon  the 
governor  powers  in  addition  to  those  conferred  by  the  constitution  itself 
and  the  legislature  of  the  state  afterward  renewed  these  powers  by 
statutory  enactment.  The  Maryland  legislature  in  1777  and  1778  in- 
creased the  powers  of  the  governor  and  council  as  defined  by  the  con- 
stitution. In  Rhode  Island,  v^-here  the  colonial  charter  was  continued  as 
the  fundamental  law,  it  was  the  common  practice  of  the  legislature  to 
make  alterations  at  will.  The  sharp  distinction  between  constitutional 
and  statutory  law  was  a  matter  of  growth  not  an  original  princi])le  everv- 
where  accepted  and  followed  in  practice.  One  may  say  that  it  was  not 
until  more  than  a  quarter  of  a  century  after  the  Declaration  of  Inde- 
pendence that  the  doctrine  was  well  established.  As  Dr.  Dodd  remarks, 
"  towards  the  middle  of  the  nineteenth  century  we  have  a  well-defined 
notion  that  state  constitutions  should  not  be  easily  subject  to  change." 

Difference  in  Sanction  Later  Introduced 

Later  each  state  established  different  methods  of  enacting  constitu- 
tions and  amendments  from  those  organized  for  the  enactment  of  statutory 
laws.  The  methods  adopted  were  many,  but  in  nearly  all  of  them  are 
these  common  characteristics,  viz. : 

1.  What  are  called  constitutions  and  amendments  to  constitutions 

at  one  time  or  another  must  be  submitted  to  the  people 
for  a  vote  by  the  electorate. 

2.  The  procedure  of  adoption  and  amendment  is  much  more  diffi- 

cult and  dilatory  in  operation  than  the  procedure  for  the 
enactment  of  statute  law. 

184 


THE    CONTENT    AND    FORM    OF    THE    CONSTITUTION 

The  first  of  these  differences  is  being  gradually  broken  down  in 
some  of  the  states.  Legislation  on  various  subjects  is  often  required  to  be 
submitted  to  the  people,  and  in  some  of  them  any  law  may  be  so  sub- 
mitted. The  only  characteristic  of  what  is  called  constitutional  law  that 
is  general  is  the  extraordinary  difftculty  of  enactment  and  amendment 
and  even  this  characteristic  is  abandoned  in  six  states. 

Recent  Abandonment  of  Difference  of  Sanction  for  Statute  and  Constitu- 
tional Law  by  Some  States 

Within  recent  years,  however,  there  has  been  a  gradual  relaxation  of 
the  hard  and  fast  methods  of  changing  the  written  constitutions.  Nearly 
all  the  states  have  made  the  procedure  more  simple.  Eleven  states  now 
provide  for  constitutional  amendment  by  popular  initiative  and  refer- 
endum, and  in  this  respect  six  of  the  states,  California,  Oregon,  Nevada, 
Colorado,  Missouri  and  Arkansas  make  no  distinction  between  the  adop- 
tion of  amendments  and  the  adoption  of  statutes.  In  other  words,  they 
provide  that  a  constitutional  amendment  may  be  initiated  by  the  same 
number  of  petitioners  and  adopted  by  the  same  majority  as  in  the  case  of 
statutes.  The  difficulty  of  enacting  constitutional  law  is  thereby  being 
broken  down  and  any  measure  initiated  by  popular  action  may  be  called  a 
constitutional  amendment  or  a  statute  at  the  pleasure  of  the  initiators. 
"  It  mav  be  said,"  remarks  Dr.  Dodd,  "  that  in  about  half  of  the  states 
constitutions  are  easily  amendable  and  that  in  a  large  and  growing  group 
of  states  the  processes  of  amendment  and  of  ordinary  legislation  are  tend- 
ing to  become  substantially  the  same.  Both  in  content  and  form  of 
enactment  the  distinction  between  the  two  types  of  law  is  tending  to 
disappear." 

The  Idea  of  the  Difference  in  the  Nature  of  Constitutional  and  Statute 
Laiv  Generally  Abandoned 

Although  only  six  states  in  the  Union  have  destroyed  the  distinction 
between  constitutional  and  statutory  law  which  is  derived  from  the  dif- 
ferent manner  of  enactment,  nearly  all  of  the  states  have  ignored  the 
distinction  between  constitutional  and  statute  law  which  flows  from  the 
nature  of  the  law  itself.  It  was  in  the  nature  of  the  law  rather  than  in 
the  solemn  form  of  its  enactment  that  the  Fathers  made  the  great  dis- 
tinction between  the  constitution  and  ordinary  statutes.  Reflecting 
English  traditions  and  experience  in  their  opinion  and  practice  the  early 
constitutions  were  short  and  covered  only  such  rights  as  were  essential 
to  popular  sovereignty,  the  establishment  of  government,  and  the  protec- 
tion of  the  people  against  usurpation,  /.  e.,  the  rights  of  the  people  and  the 
form  of  the  government.    The  New  Jersey  constitution  of  1776  occupies 

185 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

only  four  printed  pages  in  Thorpe's  collection  of  American  constitutions. 
The  New  York  constitution  of  1777  (omitting  the  Declaration  of  Inde- 
pendence and  other  matter  of  the  preamble)  occupies  about  nine  pages 
of  that  collection.  \\'e  are  told  on  good  authority  (Dr.  Dealey,  Growth 
of  American  Constitutions,  p.  120)  that  "  the  earliest  constitutions  sel- 
dom contained  over  five  thousand  words  and  averaged  much  less.  Now, 
the  shortest  constitution  (Rhode  Island's)  contains  about  six  thousand 
words,  the  average  is  about  sixteen  thousand,  and  the  five  largest  are 
codes  in  themselves."  There  are  33,000  words  in  the  Alabama  consti- 
tution, 25,000  in  the  Virginia  constitution.  45,000  in  that  of  Louisiana 
and  nearly  50,000  in  that  of  Oklahoma. 

Causes  for  the  Change  m  the  Content  of  Constitutions 

This  immense  growth  in  the  size  of  state  constitutions  is  due  to  the 
incorporation  of  a  vast  mass  of  law  that  is  not  fundamental  but  inci- 
dental and  statutory  in  character.  The  underlying  reason  for  this  de- 
parture from  the  idea  that  the  constitution  should  contain  only  funda- 
mental provisions  of  law  governing  the  government  is  that  under  our 
constitutions  the  government  has  been  irresponsible.  This  irresponsi- 
bility of  the  government  has  shown  itself  in  two  different  ways  that  in 
themselves  have  operated  to  make  the  constitutions  increasingly  complex 
and  verbose,  viz. : 

1.  There  has  been  a  growing  distrust  of  the  legislature  leading 

to  the  imposition  of  restrictions  on  that  body  and  to  the 
removal  of  many  matters  from  its  sphere  of  action 

2.  The  legislature  has  failed  to  respond  to  popular  desires  and 

will,  and  the  people  have  sought  to  obtain  needed  legisla- 
tion through  the  constitutional  convention  and  popular 
initiative 

Distrust  of  the  Legislature  and  Search  for  Responsibility 

From  the  standpoint  of  this  appraisal,  namely,  that  the  govern- 
ment should  be  responsible  and  efficient,  the  first  of  these  causes  for 
abandoning  the  true  distinction  between  constitutional  and  statute 
law,  namely  the  loss  of  popular  confidence  in  the  legislature,  is  the  most 
important.  Not  only  has  the  electorate  grown  so  distrustful  of  the  legis- 
lature that  it  has  invaded  the  field  of  statute  law ;  it  has  also  added  to 
constitution  a  mass  of  restrictions  on  the  legislature  with  a  view  to 
preventing  if  from  doing  evil.  We  are  told,  for  instance,  that  of  the  287 
articles  in  the  Alabama  constitution  of  1901,  thirty-six  are  restrictions 
in  the  form  of  a  declaration  of  rights,  thirty  control  legislative  pro- 
cedure, and   eight  are  prohibitions  on  special  and  local  legislation.     In 

186 


THE    CONTENT    AND    FORM    OF    THE    CONSTITUTION 

the  rearranged  draft  of  the  present  constitution  (See  Appendix  pp.  193 
ct  seq.)  it  will  be  seen  that  sixteen  out  of  forty-four  pages  (193  to  237) 
are  in  the  nature  of  restrictions  on  the  legislature  and  three  pages  more 
are  in  the  nature  of  private  law  that  owe  their  origin  and  continuation 
to  similar  causes.  In  other  words,  in  an  effort  to  secure  responsibility, 
the  voters  have  walled  the  legislature  about  with  restrictions  and  enact- 
ments that  it  cannot  change — with  a  resulting  necessity  for  continual  con- 
stitutional amendment  which  destroys  all  notion  of  the  constitution  being 
the  fundamental  law  governing  the  government. 

The  Time  for  a  Fundamental  Change  Has  Arrived 

The  situation  in  which  we  now  find  ourselves  is,  in  many  respects,  a 
travesty  upon  American  political  intelligence.  All  power  is  declared  to 
be  in  the  people  whose  will  is  to  be  expressed  through  an  electorate  and 
through  representatives  chosen  by  the  voters.  Our  government  thus 
organized  is  declared  to  be  the  most  democratic  instrument  for  legislation 
and  administration  known  to  history ;  at  the  same  time  our  written  con- 
stitutional documents  do  not  adequately  provide  for  getting  political  issues 
before  the  electorate,  and  they  record  the  fact  that  representatives  cannot 
be  trusted  and  held  responsible  to  the  voters.  Every  constitutional  con- 
vention, in  fact,  almost  every  election,  produces  a  new  set  of  limitations 
on  the  sphere  of  legislative  action,  and  yet  it  is  not  apparent  that  our  legis- 
latures have  grown  more  responsive  and  responsible  or  more  efficient,  or 
more  economical  in  disposing  of  the  resources  at  their  command. 

Under  these  circumstances,  it  would  be  desirable  to  discontinue  the 
futile  process  of  swelling  our  constitutions  by  limitations  and  statutory 
enactments  unless  we  are  ready  to  admit  that  our  government  is  not  repre- 
sentative and  our  elected  officials  are  not  to  be  made  responsible  to  the 
electorate.  It  is  nowhere  evident  that  the  petty  restrictions  and  popular  i 
palliatives  on  which  American  ingenuity  has  exhausted  itself  have  been  f 
effective  in  preventing  corrupt,  wasteful,  and  invisible  government.  Our  j 
irresponsible  legislature  has  proved  as  ingenious  in  evasions  as  our  con- 
stitution makers  have  been  in  their  limitations.  Paper  declarations  hav- 
ing been  largely  ineft'ective,  the  time  has  come  to  try  the  experiment  of 
open  official  leadership  held  to  responsibility  by  a  body  of  representatives 
who  are  not  presumed  to  do  the  impossible — viz.,  to  make  intelligent  plans 
about  administration  and  to  formulate  budgets  and  administrative  law  for 
the  execution  of  which  they  have  no  responsibility.  Is  it  rot  time  for  the 
citizen  to  ask  himself  the  question  as  to  whether  constitutions  should  not 
be  based  on  the  assumption  that  public  Opinion  when  informed  and  under 
responsible  leadership  may  be  trusted  to  impose  the  inhibitions  required 
for  good  government  ? 


187 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 

The  Constitution  Should  Contain  Only  the  Great  Underlying  Principles 
of  the  Provisions  for  Goz-\c\rnnient 
Such  a  procedure  would  require  a  return,  in  one  respect,  to  the  early 
view  that  a  constitution  should  contain  a  brief,  clear  statement  of  the 
principles  which  should  control  the  reserved  rights  of  the  people  and  the 
organization  and  essential  working  relations  of  the  parts  of  the  govern- 
ment. These  principles  should  include  in  the  organization  the  well-tried 
expedients  which  have  been  found  most  conducive  to  the  establishment 
of  responsibility  and  efficiency  in  government.  By  this  alteration  in  the 
content  of  the  constitution,  the  dignity  of  constitutional  law  could  be 
restored  and  the  organic  principles  of  our  government  could  be  made  so 
clear  that  any  citizen  could  understand  them.  The  sound  practice  of 
relying  upon  constant  responsible  leadership  and  informed  public  opinion 
would  be  substituted  for  reliance  upon  more  or  less  ineffective  paper 
declarations  and  resort  to  popular  palliatives  to  curb  the  powers  of  the 
irresponsible  boss.  Representative  government  would  be  given  the  high 
place  which  it  deserves,  a  new  type  of  leader  and  legislato'-  would  be  de- 
veloped, and  open-handed  constructive  politics  substituted  for  the  present 
political  game  of  hide  and  seek  wdiich  has  resulted  from  the  generally 
accepted  doctrine  that  no  one  can  be  trusted  in  public  office. 

Three  Expedients  for  Simplifying  the  Constitution 

If,  however,  it  is  thought  that  the  time  has  not  arrived  to  abandon 
reliance  upon  safety  devices  which  have  not  proved  effective  and  that 
responsible  representative  government  cannot  be  safely  tried  in  the  United 
States,  there  are  three  expedients  which  will  go  to  the  simplification  of  the 
government : 

1.  The  separation  of  the  temporary  and  private  law  provisions 

from  the  main  body  of  the  constitution,  and  the  inclusion 
of  temporary  provisions  in  a  schedule 

2.  The  separation  of  the  minor  from  the  fundamental  provisions 

of  the  constitution  and  the  establishment  of  an  easier 
method  of  amending  those  clauses  which  are  of  less  im- 
portance and  most  likely  to  call  for  change 

3.  The    correlation    of    administrative    officers    and    departments 

WMth  a  view  to  prevent  overlapping  conflict  and  waste 

The  first  of  these  expedients  involves  no  radical  departure  from 
present  practice  and  yet  it  would  greatly  simplify  the  main  principles  of 
the  constitution  and  bring  them  out  into  bolder  relief.  For  example,  the 
temporary  provisions  dealing  with  the  apportionment  of  assemblymen  and 
senators  occupied  in  the  constitution  of  1894  about  half  as  much  space  as 
the  entire  body  "f  the  constitution  of  1777.  The  removal  of^this  material 
to  a  schedule  adds  a  very  desirable  element  of  brevity. 

188 


THE    CONTENT    AND    FORM    OF    THE    CONSTITUTION 

Application  of  a  More  Difficult  Amendment  Process  to  the  Fi4ndamental 
Parts  of  the  Constitution 
The  second  of  these  expedients,  namely,  the  adoption  of  an  easy 
amending  process  for  the  minor  and  more  temporary  parts  and  a  more 
difficult  process  for  the  more  fmidamental  parts,  is  not  unknown  in  the 
United  States.  As  Dn  Dodd  points  out  (Political  Science  Quarterly,  June 
1915,  p.  219)  :  "  Several  constitutions  have,  in  fact,  already  made  such  a 
distinction,  some  by  making  important  provisions  more  difficult  of  change, 
others  by  making  easier  the  alteration  of  less  important  provisions."  At 
all  events,  the  present  confusion  of  amendments  covering  important 
matters  with  amendments  applying  to  minor  matters — all  mixed  up  to- 
gether on  a  long  ballot — prevents  discriminating  action  on  the  part  of  the 
voters.  On  the  same  occasion  voters  are  called  upon  to  enact  a  funda- 
mental provision  dealing  with  the  rights  of  persons  and  property,  and  are 
invited  to  express  an  opinion  on  how  many  judges  should  be  elected  in  a 
part  of  the  state  with  which  they  are  wholly  unfamiliar.  Certainly  nothing 
could  add  more  to  the  muddle  in  which  voters  find  themselves  or  prove 
more  disastrous  to  the  concentration  of  popular  opinion  on  the  grand 
matters  of  government. 

The  Form  of  the  Constitution 

The  question  of  the  form  of  the  constitution,  that  is,  the  arrangement 
of  the  provisions,  calls  for  only  a  brief  treatment  here.  The  volume 
which  precedes  is  in  fact  a  commentary  on  the  proper  division  and  classi- 
fication of  the  clauses  of  the  fundamental  law.  The  reasons  for  the 
creation  of  separate  parts  or  articles  are  in  each  case  set  forth  in  the 
critical  appraisement  and  to  repeat  them  here  would  be  a  work  of 
supererogation.  If  the  principles  of  responsible  government  as  expounded 
above  are  accepted,  then  the  respective  parts  of  the  constitution  embodying 
them  in  law  should  be  so  organized  as  to  set  them  forth  with  the  greatest 
precision  and  clarity  for  the  information  of  the  citizens  and  the  govern- 
ment.   To  accomplish  this  purpose  the  following  divisions  are  suggested : 

Enacting  clause 

Declaration  of  rights  reserved  by  the  people 

Electorate  and  electors 

Officers 

Legislature 

Executive 

The  departmental  organization 

Financial  and  other  proprietary  departments,  boards,  and 
offices 

Civil  departments  rendering  service  to  the  public 

Military  government 

189 


CONSTITUTION    AND    GOVERNMENT    OF    THE    STATE 


General  auditor 
Local  government 
Courts 
Amendments 

Besides  these  it  is  suggested  that  the  following  provisions  be  elimi- 
nated from  the  continuing  constitutional  law  as  such : 

Provisions  of  private  and  administrative  law  included   in  the 

constitution 
Schedule  (interim  and  temporary  provisions) 

The  first  of  these  should  be  separately  submitted  to  the  electorate  for 
adoption  or  rejection  with  any  provisions  that  are  desired  for  making 
them  more  difficult  of  amendment  than  ordinary  statutes. 

For  the  purpose  of  illustration,  the  constitution  of  1894,  arranged  on 
the  basis  of  this  classification,  is  included  in  the  appendix  which  follows. 


190 


APPENDIX 


THE    CONSTITUTION    OF    1894 

Rearranged  under  Functional  Heads,  Captions  Corresponding  with  Sub- 
jects Discussed  in  Report  and  Annotated  to  Prior  Constitutions 

To  the  end  that  the  provisions  governing  the  organization,  powers,  duties, 
and  limitations  of  the  government  of  the  state  may  be  made  more  readily  avail- 
able to  members  of  the  convention  and  to  others  (who  may  be  interested  in  this 
report)  all  of  the  matter  of  the  Constitution  has  been  rearranged  under  the  fol- 
lowing titles: 

Enacting  Clause 

Declaration  of  Rights  Reserved  by  the  People 

The  Electorate  and  Electors 

Officers 

The  Legislature 

The  Executive 

Financial    and    Other   Proprietary    Departments,    Boards    and 

Offices 
Civil  Departments  for  Rendering  Service  to  the  Public 
Military  Government 
The  General  Auditor 
The  Courts 
Local  Government 
Amendments 

Provisions  of  Private  Lazv  included  in  the  Constitution 
Schedule  (Interim  and  Temporary  Provisions) 

In  this  rearrangement  the  language  of  the  present  Constitution  is  used, 
except  where  by  breaking  up  the  context  the  meaning  would  be  impaired  without 
change  of  verbal  form,  in  which  event  the  words  suppHed  are  put  in  brackets. 
The  annotations  at  the  side  constitute  an  outline  analysis  with  exact  references  to 
the  original  document.  The  annotations  at  the  bottom  of  each  paragraph  are  to 
former  Constitutions — the  purpose  being  to  give  a  complete  history  of  the  evolu- 
tion of  each  clause  as  used  here.  The  use  of  running  article  numbers,  section 
numbers  and  paragraph  numbers  in  the  text  is  for  convenience  of  reference  to  the 
rearrangement. 


192 


THE  CONSTITUTION  OF  THE  STATE  OF  NEW  YORK 


Enacting   Clause 
Purpose 


Rearranged  and  Annotated 

ENACTING    CLAUSE — PREAMBLE* 

We  the  People  of  the  State  of  New  York,  grateful  to 
Almighty  God  for  our  freedom,  in  order  to  secure  its  blessing 
do  establish  this  Constitution. 

Article  I 

DECLARATION  OF  RIGHTS  RESERVED  BY  THE  PEOPLE 

Section  1.  [The  people  of  the  state  hereby  make  this 
declaration  of  principles  and  reserve  to  themselves  the  follow- 
ing rights,  which  may  not  be  impaired.] 

2.  No  member  of  this  state  shall  be  disfranchised  or 
deprived  of  any  of  the  rights  or  privileges  secured  to  any 
citizen  thereof,  unless  by  the  law  of  the  land,  or  the  judgment 
of  his  peers. 

(1777,  XIII;  1821,  VII,  1;  1846,  I,  1) 

3.  The  free  exercise  and  enjoyment  of  religious  profes- 
sion and  worship,  without  discrimination  or  preference,  shall 
forever  be  allowed  in  this  state  to  all  mankind.  *  *  *  The 
liberty  of  conscience  hereby  secured  shall  not  be  so  construed 
as  to  excuse  acts  of  licentiousness,  or  justify  practices  incon- 
sistent with  the  peace  or  safety  of  this  state. 

(1777,  XXXVIII;  1821,  VII,  3;  1846,  I,  3) 


Ciliscnship 
Art.  I.  Sec.  1 


Religious  Freedom 
Art.  I,   Sec.   3 


Freedom  of  Speech 
and  of  the  Press 
Art.  I,   Sec.  8 


Habeas 
Art.   I. 


Jurv  Trial 
Art.   I,   Sec.   2 


4.  Every  citizen  may  freely  speak,  write  and  publish  his 
sentiments  on  all  subjects,  being  responsible  for  the  abuse  of 
that  right. 

(1821,  VII,  8;  1846,  I,  8) 

5.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  its  suspension. 

(1821,  VII,  6;  1846,  I,  4) 

6.  The  trial  by  jury  in  all  cases  in  which  it  has  been 
heretofore  used  shall  remain  inviolate  forever;  but  a  jury 
trial  may  be  waived  by  the  parties  in  all  civil  cases  in  the 
manner  to  be  prescribed  by  law. 

(1777,  XLI;  1821,  VII,  2;  1846,  I,  2) 

*  While  the  constitution  of  1777  had  no  preamble  it  had  an  elaborate  introduction  which 
took  up  one-third  of  the  entire  document.  Beginning  with  the  statement  that.  "Whereas  the 
many  tyrannical  and  oppressive  usurpations  of  the  King  and  Parliament  of  Great  Britain  on  the 
rights  and  liberties  of  the  people  of  the  American  colonies  had  reduced  them  to  the  necessity 
of  introducing  a  government  by  congresses  and  committees,  as  temporary  expedients,  and  to 
exist  no  longer  than  the  grievances  of  the  people  should  remain  without  redress,"  it  proceeded 
to  set  forth  the  resolution  of  the  General  Congress  recommending  that  new  governments  be 
organized  in  the  colonies;  the  resolution  of  the  Congress  of  the  colony  of  New  York,  making 
recommendations  for  carrying  this  suggestion  into  effect;  the  fact  that  delegates  had  been  elected 
with  authority  to  frame  a  new  government;  the  declaration  of  independence  in  full  and  the 
fact  of  its  approval  by  the  delegates  and  then  continued:  "By  virtue  of  which  several  acts, 
declarations,  and  proceedings  mentioned  and  contained  in  the  afore-cited  resolves  or  resolutions 
of  the  general  Congress  of  the  United  American  States,  and  of  the  congress  or  conventions  of 
this  State,  all  power  whatever  therein  hath  reverted  to  the  people,  thereof,  and  this  convention 
hath  by  their  suffrages  and  free  choice  been  appointed,  and  among  other  things  authorized  to 
institute  and  establish  such  a  government,  as  they  shall  deem  best  calculated  to  secure  the  rights 
and  liberties  of  the  good  people  of  this  State,  most  conducive  of  the  happiness  and  safety  of 
their  constituents  in  particular,  and  of  America  in  general.  This  convention,  therefore,  in  the 
name  and  by  the  authority  of  the  good  people  of  this  State,  doth  ordain,  determine,  and  declare 
that  no  authority  shall,  on  any  pretense  whatever,  be  exercised  over  the  people  or  members  of 
this  State,  but  such  as  shall  be  derived  from  and  granted  by  them."  In  a  similar  way  the 
convention  of  1801  prefaced  its  amendments  by  a  recital  of  the  act  of  the  legislature  providing 
for  the  election  of  delegates,  the  election  of  delegates  and  the  fact  of  their  deliberation.  The 
convention  of  1821  dropped  the  long  introduction  and  adopted  the  following  preamble:  "We, 
the  people  of  the  State  of  New  York,  acknowledging  with  gratitude  the  grace  and  beneficence 
of  God  in  permitting  us  to  make  choice  of  our  form  of  government,  do  establish  this  constitu- 
tion."    In  1846  the  preamble  was  amended  to  its  present  form. 

193 


APPENDIX 


Excessive  Bail  and 
Punishment 
Detention  of   Wit- 
nesses 
Art.  I.  Sec.   S 

Indictment 
Art.  I.   Sec.  6 


Double    Jeopardy 
Art.   I,   Sec.   6 


7.  Excessive  bail  shall  not  be  required  nor  excessive  fines 
imposed,  nor  shall  cruel  and  unusual  punishments  be  inflicted, 
nor  shall  witnesses  be  unreasonably  detained. 

(1846,  I,  5) 

8.  No  person  shall  be  held  to  answer  for  a  capital  or 
other  infamous  crime  (except  in  cases  of  impeachment,  and 
in  cases  of  militia  when  in  actual  service,  and  the  land  and 
naval  forces  in  time  of  war,  or  which  this  state  may  keep 
with  consent  of  congress  in  time  of  peace,  and  in  cases  of 
petit  larceny  under  the  regulation  of  the  legislature),  unless 
on  presentment  or  indictment  of  a  grand  jury. 

(1821,  VII,  7;   1846,  I,  6) 

9.  No  person  shall  be  subject  to  be  twice  put  in  jeopardy 
for  the  same  offense. 

(1821,  VII,  7;  1846,  I,  6) 


Criminating  Evidence 
Art.   I,   Sec.  6 


Due  Process 
Art.   I.   Sec.   6 


Counsel 

Art.   I.    Sec.   6 


Taking  Private 
Properly 
Art.  I.   Sec.  6 


10.  [No  person  shall]  be  compelled  in  any  criminal  case 
to  be  a  witness  against  himself. 

(1821,  VII,  7;  1846,  I,  6) 

11.  [No  person  shall]  be  deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law. 

(1821,  VII,  7;  1846,  I,  6) 

12.  In  any  trial  in  any  court  whatever  the  party  accused 
shall  be  allowed  to  appear  and  defend  in  person  and  with 
counsel  as  in  civil  actions. 

(1821,  VII,  7;  1846.  I,  6) 

13.  Private  property  [shall  not]  be  taken  for  public  use, 
without  just  compensation. 

(1821,  VII,  7;  1846,  I,  6) 


Article  II 
THE    ELECTORATE   AND    ELECTIONS 


General  Qualifications 
Art.  II,  Sec.   1 


The  Electorate 

Section  1.  Every  male  citizen  of  the  age  of  twenty-one 
years,  who  shall_  have  been  a  citizen  for  ninety  days,  and  an 
inhabitant  of  this  state  one  year  next  preceding  an  election, 
and  for  the  last  four  months  a  resident  of  the  county  and 
for  the  last  thirty  days  a  resident  of  the  election  district  in 
which  he  may  offer  his  vote,  shall  be  entitled  to  vote  at  such 
election  in  the  election  district  of  which  he  shall  at  the  time 
be  a  resident,  and  not  elsewhere,  for  all  officers  that  now 
or  hereafter  may  be  elective  by  the  people,  and  upon  all 
questions  which  may  be  submitted  to  the  vote  of  the  people, 
provided  that  in  time  of  war  no  elector  in  the  actual  mili- 
tary service  of  the  state,  or  of  the  United  States,  in  the  army 
or  navy  thereof,  shall  be  deprived  of  his  vote  by  reason  of 
his  absence  from  such  election  district. 

(1777,  VII;  1821,  II,  1;  1846,  IL  1) 

2.     The  legislature  shall  have  power  to  provide  the  man- 
ner  in   which    and   the   place   at   which    such   absent   electors 
may  vote,  and  for  the  return  and  canvass  of-their  votes  in 
the  election  districts  in  which  they  respectively  reside. 
(1846,  II,  1,  added  in  1874) 

194 


APPENDIX   I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


Residence 
Art.  II,  Sec.  3 


Section  2.  For  the  purpose  of  voting,  no  person  shall  be 
deemed  to  have  gained  or  lost  a  residence,  by  reason  of  his 
presence  or  absence,  while  employed  in  the  service  of  the 
United  States;  nor  while  engaged  in  the  navigation  of  the 
waters  of  this  state,  or  of  the  United  States,  or  of  the  high 
seas;  nor  while  a  student  of  any  seminary  of  learning;  nor 
while  kept  at  any  almshouse,  or  other  asylum,  or  institution 
wholly  or  partly  supported  at  public  expense,  or  by  charity; 
nor  while  confined  in  any  public  prison. 
(1846,  II,  3) 


Registration 
Art.  II.  Sec.  4 


Persons  Excluded 

from   Right   of 

Suffrage 

Art.  II,  Sec.  2 


Section  3.  Registration  shall  be  completed  at  least  ten 
days  before  each  election.  Such  registration  shall  not  be  re- 
quired for  town  or  village  elections  except  by  express  pro- 
visions of  law.  In  cities  and  villages  having  five  thousand 
inhabitants  or  more,  according  to  the  last  preceding  state 
enumeration  of  inhabitants,  voters  shall  be  registered  upon 
personal  application  only;  but  voters  not  residing  in  such 
cities  or  villages  shall  not  be  required  to  apply  in  person 
for  registration  at  the  first  meeting  of  the  officers  having 
charge  of  the  registry  of  voters. 

Section  4.  No  person  who  shall  receive,  accept,  or  offer 
to  receive,  or  pay,  offer  or  promise  to  pay,  contribute,  offer 
or  promise  to  contribute  to  another,  to  be  paid  or  used,  any 
money  or  other  valuable  thing  as  a  compensation  or  reward 
for  the  giving  or  withholding  a  vote  at  an  election,  or  who 
shall  make  any  promise  to  influence  the  giving  or  withholding 
any  such  vote,  or  who  shall  make  or  become  directly  or  in- 
directly interested  in  any  bet  or  wager  depending  upon  the 
result  of  any  election,  shall  vote  at  such  election;  and  upon 
challenge  for  such  cause,  the  person  so  challenged,  before  the 
officers  authorized  for  that  purpose  shall  receive  his  vote, 
shall  swear  or  affirm  before  such  officers  that  he  has  not 
received  or  offered,  does  not  expect  to  receive,  has  not  paid, 
offered  or  promised  to  pay,  contributed,  offered  or  promised 
to  contribute  to  another,  to  be  paid  or  used,  any  money  or 
other  valuable  thing  as  a  compensation  or  reward  for  the 
giving  or  withholding  a  vote  at  such  election,  and  has  not 
made  or  become  directly  or  indirectly  interested  in  any  bet 
or  wager  depending  upon  the  result  of  such  election.  [Persons 
convicted  of  bribery  or  of  any  infamous  crime  may  be  ex- 
cluded from  the  right  of  suffrage  in  the  manner  provided 
in  article  IV,  section  21,  paragraph  2.] 

(1846,  II,  2,  as  amended,  1874) 


General  Provisions 
Art.  II,  Sec.  5 


Bi-partisan   Election 

and     Registration 

Boards 

Art.    II,    Sec.    6 


Elections 

Section  5.  All  elections  by  the  citizens,  except  for  such 
town  officers  as  may  by  law  be  directed  to  be  otherwise  chosen, 
shall  be  by  ballot,  or  by  such  other  method  as  may  be  pre- 
scribed by  law,  provided  that  secrecy  in  voting  be  pre- 
served. 

(1777,  VI;  1821,  II,  4;  1846,  II,  5) 

Section  6.  All  laws  creating,  regulating  or  affecting 
boards  of  officers  charged  with  the  duty  of  registering  voters, 
or  of  distributing  ballots  at  the  polls  to  voters,  or  of  receiving, 
recording  or  counting  votes  at  elections,  shall  secure  equal 
representation  of  the  two  political  parties  which,  at  the  gen- 
eral election  next  preceding  that  for  which  such  boards  or 
officers  are  to  serve,  cast  the  highest  and  the  next  highest 
number  of  votes.  All  such  boards  and  officers  shall_  be 
appointed  or  elected  in  such  manner,  and  upon  the  nomina- 

195 


APPENDIX 


tion  of  such  representatives  of  said  parties  respectively,  as 
the  legislature  may  direct.  Existing  laws  on  this  subject  shall 
continue  until  the  legislature  shall  otherwise  provide.  This 
section  shall  not  apply  to  town  meetings,  or  to  village  elec- 
tions. 


Titne    of    Election 
Members    of 
Legislature 
Art.    Ill,    Sec.    9 


Section  7.     The  elections  of  senators  and  members  of  as- 
sembly, pursuant  to  the  provisions  of  this  constitution,  shall 
be    held    on    the    Tuesday    succeeding    the    first    Monday    of 
November,  unless  otherwise  directed  by  the  legislature. 
(1821,  I,  15;  1846,  III,  9) 


Governor    and 
Lievt. -Governor 
Art.    IV.    Sec.    3 


Secretary    of    State, 
Comptroller, 
Treasurer,     Attorney 
General,  State 
Engineer 
Art.  V,  Sec.  1 


2.  The  governor  and  lieutenant-governor  shall  be  elected 
at  the  times  and  places  of  choosing  members  of  the  assembly. 

(1821,  I,  15;  1846,  IV,  3) 

3.  The  secretary  of  state,  comptroller,  treasurer,  attorney- 
general  and  state  engineer  and  surveyor  shall  be  chosen  at  a 
general  election,  at  the  times  and  places  of  electing  the  gov- 
ernor and  lieutenant-governor. 

(1846,  V,  1;  see  1777,  XXII  and  1821,  IV,  6) 


Conntv  Judges 
Art.  VI,  Sec.  14 


4.  The  additional  county  judges  whose  offices  may  be 
created  by  the  legislature  shall  be  chosen  at  the  general  elec- 
tion held  in  the  first  odd-numbered  year  after  the  creation  of 
such   office. 


Sheriffs,  County 
Clerks,  District 
Attorneys,  Registers 
Art.  X,  Sec.   1 


Justices   of   the   Peace 
Art.   VI,   Sec.   17 


5.  Sheriffs,  clerks  of  counties,  district  attorneys,  and  regis- 
ters in  counties  having  registers,  shall  be  chosen  *  *  * 
once  in  every  three  years  and  as  often  as  vacancies  shall 
happen,  except  in  the  counties  of  New  York  and  Kings,  and  in 
counties  whose  boundaries  are  the  same  as  those  of  a  city, 
where  such  officers  shall  be  chosen  *  *  *  once  in  every 
two  or  four  years  as  the  legislature  shall  direct. 

(1821,  IV,  8;  1846,  X,  1;  see  1777,  XXVI) 

6.  The  electors  of  the  several  towns  shall,  at  their  annual 
town  meetings,  or  at  such  other  time  and  in  such  manner  as 
the  legislature  may  direct,  elect  justices  of  the  peace. 

(1846,  VI,  17;  see  1821,  IV,  7) 


Citv  Officers 
Art.  XII,  Sec.  3 


Election  Districts 

Senate 

Art.  Ill,  Sec.   3 


Apportionment 

Senate 

Art.   Ill,   Sec.   4 


7.  All  elections  of  city  officers,  including  supervisors  and 
judicial  officers  of  inferior  local  courts,  elected  in  any  city 
or  part  of  a  city,  and  of  county  officers  elected  in  the  counties 
of  New  York  and  Kings,  and  in  all  counties  whose  boundaries 
are  the  same  as  those  of  a  city,  except  to  fill  vacancies,  shall 
be  held  on  the  Tuesday  succeeding  the  first  Monday  in  No- 
vember in  an  odd-numbered  year  *  *  *_  This  section  shall 
not  apply  to  any  city  of  the  third  class,  or  to  elections  of  any 
judicial  officer,  except  judges  and  justices  of  inferior  local 
courts. 

Section  8.  The  State  shall  be  divided  into  fifty  district? 
to  be  called  senate  districts,  each  of  which  shall  choose  one 
senator.  The  districts  shall  be  numbered  from  one  to  fifty, 
inclusive. 

(1777,  XII;  amendment  of  1801;   1821,  I,  5;   1846, 
III,  3) 

Section  9.  The  said  districts  shall  be  so  altered  by  the 
legislature  at  the  first  regular  session  after  tjie  return  of 
every  enumeration,  that  each  senate  district  shall  contain  as 
nearly  as  may  be  an  equal  number  of  inhabitants,  excluding 
aliens,  and  be  in  as  compact  form  as  practicable,  and  shall  re- 

196 


main  unaltered  until  the  return  of.  another  enumeration,  and 
S/at  all  times,  consist  of  -nt.guous    err.  ory 

(1777,  XII;  amendment  of  1801;  1821,  I,  6,  1840, 


HI,  4) 


2  No  county  shall  be  divided  in  the  formation  of  a  sen- 
ate district  except  to  make  two  or  more  senate  districts  wholly 
in  such  county. 

(1821,1,6;  1846,111,4) 

3  No  town,  and  no  block  in  a  city  inclosed  by  streets  or 

d^r^h^^^^^d^^S 

?ri?t  Count  es  towns  or  blocks  which,  from  their  location 
may"  be  included  in  either  of  two  districts  shall  be  so  placed 
rio  make  said  districts  most  nearly  equal  in  number  of  in- 
habitants, excluding  aliens. 

=;     The  ratio  for  apportioning  senators  shall  always  be  ob- 

mmMmm 

tors  shall  be  increased  to  that  extent. 

mmmmm 

counties.  ^^  ^_  ^^^^^  ^  .^  _  ^^^^^  ^^^^  5^  ^^^  amendment 

of  1801)  ' 
?     The  quotient  obtained  bv  dividing  the  whole  number 

mmmmm 

197 


APPENDIX 


counties  having  the  highest  remainders  in  the  order  thereof 
respectively.  No  county  shall  have  more  members  of  assembly 
than  a  county  having  a  greater  number  of  inhabitants,  exclud- 
ing aliens. 

(See  references  to  preceding  paragraph.) 

3.  In  any  county  entitled  to  more  than  one  member,  the 
board  of  supervisors,  and  in  any  city  embracing  an  entire 
county  and  having  no  board  of  supervisors,  the  common 
council,  or  if  there  be  none,  the  body  exercising  the  power? 
of  a  common  council,  shall  assemble  on  the  second  Tuesday 
of  June,  one  thousand  eight  hundred  and  ninety-five,  and  at 
such  times  as  the  legislature  making  an  apportionment  shall 
prescribe,  and  divide  such  counties  into  assembly  districts  as 
nearly  equal  in  number  of  inhabitants,  excluding  aliens,  as 
may  be,  of  convenient  and  contiguous  territory  in  as  compact 
form  as  practicable,  each  of  which  shall  be  wholly  within  a 
senate  district  formed  under  the  same  apportionment,  equal  to 
the  number  of  members  of  assembly  to  which  such  county 
■  shall  be  entitled,  and  shall  cause  to  be  filed  in  the  office  of  the 
secretary  of  state,  and  of  the  clerk  of  such  county,  a  descrip- 
tion of  such  districts,  specifying  the  number  of  each  district 
and  of  the  inhabitants  thereof,  excluding  aliens,  according  to 
the  last  preceding  enumeration  and  such  apportionment  and 
districts  shall  remain  unaltered  until  another  enumeration 
shall  be  made,  as  herein  provided ;  but  said  division  of  the 
city  of  Brooklyn  and  the  county  of  Kings  to  be  made  on  the 
second  Tuesday  of  June,  one  thousand  eight  hundred  and 
ninety-five,  shall  be  made  by  the  common  council  of  the  said 
city  and  the  board  of  supervisors  of  said  county,  assembled 
in  joint  session.  In  counties  having  more  than  one  senate 
district,  the  same  number  of  assembly  districts  shall  be  put 
in  each  senate  district,  unless  the  assembly  districts  cannot  be 
evenly  divided  among  the  senate  districts  of  any  county,  in 
which  case  one  more  assembly  district  shall  be  put  in  the  sen- 
ate district  in  such  county  having  the  largest,  or  one  less  as- 
sembly district  shall  be  put  in  the  senate  district  in  such 
county  having  the  smallest  number  of  inhabitants,  excluding 
aliens,  as  the  case  may  require.  No  town,  and  no  block  in  a 
city  inclosed  by  streets  or  public  ways  shall  be  divided  in  the 
formation  af  assembly  districts,  nor  shall  any  district  contain 
a  greater  excess  in  population  over  an  adjoining  district  in 
the  same  senate  district,  than  the  population  of  a  town  or  block 
therein  adjoining  such  assembly  district.  Towns  or  blocks 
w^hich,  from  their  location,  may  be  included  in  either  of  two 
districts,  shall  be  so  placed  as  to  make  said  districts  most 
nearly  equal  in  number  of  inhabitants,  excluding  aliens ;  but 
in  the  division  of  cities  under  the  first  apportionment,  regard 
shall  be  had  to  the  number  of  inhabitants,  excluding  aliens ; 
of  the  election  districts  according  to  the  state  enumeration  of 
one  thousand  eight  hundred  and  ninety-two,  so  far  as  may 
be.  instead  of  lilocks.  Nothing  in  this  section  shall  prevent 
the  division,  at  any  time,  of  counties  and  towns,  and  the  erec- 
tion of  new  towns  by  the  legislature. 
(See  1846,  III,  5) 

Judicial  Districts  Section  11.    The  existing  judicial  districts  of  the  state  are 

Art.  VI,  Sec.  1  continued    until    changed    as    hereinafter    provided.     *     *     * 

The  legislature  may  alter  the  judicial  districts  once  after 
every  enumeration  under  the  constitution,  of  the  inhabitants  of 
the  state,  and  thereupon  reapportion  the  justices  to  be  there- 
after elected  in  the  districts  so  altered.  *  *  *  -pj^g  legis- 
lature may  erect  out  of  the  second  judicial  "district  as  now 
constituted,  another  judicial  district  and  apportion  the  justices 
in  office  between  the  districts,  and  provide  for  the  election  of 

198 


APPENDIX   I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 

additional  justices  in  the  new  district  not  exceeding  the  limit 
herein  provided  [in  article  X,  section  4,  paragraph  2J. 

(1846,  VI,  4,  5;  VI,  1,  as  amended  1879;  amended 
1905) 


Members  of 
LegislaHtre 
Art.   Ill,  Sec.  8 


Governor    and 
Lieutenant-Governor 
Art.  IV,   Sec.  2 


State  Engineer 
Art.  V,  Sec.  1 


Court   of  Appeals, 
Supreme  Court  and 
Countv   Courts 
Art.   VI,   Sec.   20 


Court  of  Appeals 
Art.   VI.   Sec.   7 


Appellate   Division 
Art.   VI,   Sec.   2 


Supreme  Court 

Justices 

Art.    VI,    Sec.    1 


By    Election 
Members    of 
Legislature 
Art.   III.   Sec.   2 

Governor   and 
Lieutenant-Governor 
Art.   IV,   Sec.   3 


Article  III 
OFFICERS 

Qualifications  and  Disqualifications 

Section  1.  No  person  shall  be  eligible  to  the  legislature, 
who  at  the  time  of  his  election,  is,  or  within  one  hundred 
days  previous  thereto  has  been  a  member  of  congress,  a  civil 
or  military  officer  under  the  United  States,  or  an  officer 
under  any  city  government. 

(1821,  I,  11;  1846,  III,  8) 

2.  No  person  shall  be  ehgible  to  the  office  of  governor 
or  lieutenant-governor,  except  a  citizen  of  the  United  States, 
of  the  age  of  not  less  than  thirty  years,  and  who  shall,  have 
been  five  years  next  preceding  his  election  a  resident  of  this 
state.  *  *  *  fhe  lieutenant-governor  shall  possess  the 
same  qualifications  of  eligibility  for  office  as  the  governor. 

(1821,   III,   2;    1846,   IV,  2,   7;   amendment  of  IV, 
2,  1874) 

3.  No  person  shall  be  elected  to  the  office  of  state  en- 
gineer and  surveyor  who  is  not  a  practical  civil  engineer. 

(1846,  V,  2) 


4.     No  one  shall  be  eligible  to  the  office  of  judge  of 
urt  of  appeals,  justice  of  the  supreme  court,  or,  except 


the 

couiL   oi    appeals,    jusin.c   ui    iiic   oupicmc    luuii,    ui,    cAv-cpu   in 

the  county  of  Hamilton,  to  the  office  of  county  judge  or 
surrogate,  who  is  not  an  attorney  and  counselor  of  this 
state. 

(1846,  VI,  21,  as  amended,  1869) 

5.  No  justice  shall  serve  as  associate  judge  of  the  court 
of  appeals,  except  while  holding  the  office  of  justice  of  the 
supreme  court. 

(1894,  VI,  7,  as  amended  1899) 

6.  [The  presiding  justice  of  an  appellate  division  of  the 
supreme  court]  shall  be  a  resident  of  that  department.  *  *  * 
A  majority  of  the  justices  *  *  *  designated  to  sit  in  the 
appellate  division  in  each  department  shall  be  residents  of  that 
department. 

7.  [Justices  of  the  supreme  court]  shall  reside  in  [their 
respective  judicial  districts.] 

(1846,  VI,  6,  as  amended  1869  and  1879) 

Methods  of  Selection 

Section  2.  [Senators  and  members  of  assembly  shall  be 
elected  by  popular  vote.] 

(1777,  IV,  XI;  1821,  I,  2;  1846,  III,  2) 

2.  [The  governor  and  lieutenant-governor  shall  be  elected 
by  popular  vote.]  The  persons  respectively  having  the  highest 
number  of  votes  for  governor  and  lieutenant-governor  shall 
be  elected;  but  in  case  two  or  more  shall  have  an  equal  and 
the  highest  number  of  votes  for  governor,  or  for  lieutenant- 
governor,  the  two  houses  of  the  legislature  at  its  next  annual 
session   shall   forthwith,   by  joint   ballot,   choose   one   of   the 

199 


APPENDIX 


Secretary  of  State, 
Comptroller, 
Treasurer,    Attorney- 
General,    State 
Engineer 
Art.   V,   Sec.   1 

Court  of  Appeals 
Art.   VI,   Sec.    7 


Supreme   Court 
Art.   VI,   Sec.    1 


County    Judges 
Art.  VI,   Sec.    14 


Surrogates 

Art.    VI,    Sec.    15 


Sheriffs,  County 
Clerks,    District 
Attorneys.    Registers 
Art.    X,    Sec.    1 


Justices    of    Peace- 
Towns 
Art.   VI,  Sec.   17 


Justices   of   Peace, 
"District    Court 
Justices — Cities 
Art.  VI,   Sec.    17 


Appointment 

By  the  Legislaturf 

Art.  Ill,  Sec.   10 


By   the   Govern 
Art.  V,  Sec.  7 


Art.  VI,  Sec.  2 


said  persons  so  having  an  equal    and  the  highest  number  of 
votes  for  governor  or  lieutenant-governor. 

(1777,  XVII,  XX;  1821,  III,  3;  1846,  IV,  3) 

3.  [The  secretary  of  state,  comptroller,  treasurer,  attor- 
ney-general and  state  engineer  and  surveyor  shall  be  elected 
by  popular  vote.] 

(1846,  V,  1,  2,  see  1821,  IV,  6  and  1777,  XXII) 

4.  [The  justices  of  the  court  of  appeals]  shall  be  chosen 
by  the  electors  of  the  state  [except  as  designations  are  made 
by  the  governor  as  provided  in  article  III,  section  3,  para- 
graph 4.] 

(1846,  VI,  2,  as  amended  1869,  see  1846,  VI,  2,  12) 

5.  The  successors  of  [the]  justices  [of  the  supreme  court] 
shall^  be  chosen  by  the  electors  of  their  respective  judicial 
districts. 

(1846,  VI,  4,  12;  1869,  VI,  13) 

6.  All  county  judges,  including  successors  to  existing 
judges,  shall  be  chosen  by  the  electors  of  the  counties. 

(1846,  VI,  15,  as  amended,  1869,  see  1846,  VI,  14) 

7.  [The]  successors  [of  the  surrogates]  shall  be  chosen 
by  the  electors  of  their  respective  counties. 

(See  1846,  VI,  15,  as  amended,  1869) 

8.  Sheriffs,  clerks  of  counties,  district  attorneys,  and 
registers  in  counties  having  registers,  shall  be  chosen  by  the 
electors  of  the  respective  counties. 

(1821,  IV,  8;  1846,  X,  1,  see  1777,  XXVI) 

9.  [Justices  of  the  peace  of  towns  shall  be  elected  by 
the  electors  of  the  several  towns.] 

(1846,  VI,  18,  see  1821,  IV,  7;  1777,  XXIII) 

10.  [Justices  of  the  peace  and  district  court  justices] 
may  be  elected  in  the  different  cities  of  this  state  in  such 
manner  [as  shall  be  prescribed  by  law.] 

(1846,  VI,  18,  as  amended,  1869,  see  1846,  VI,  18; 
1821,  IV,  7;  1777,  XXIII) 

Section  3.  [The  senate  and  the  assembly  each]  shall  choose 
its  own  officers. 

(1821,  I,  3;  1846,  III,  10,  see  1777,  IX) 

2.  The  governor  shall  appoint  a  competent  person  to 
discharge  the  duties  of  the  office  during  [the]  suspension 
of  the  treasurer. 

(1846,  V,  7) 

3.  From  all  the  justices  elected  to  the  supreme  court  the 
^governor  shall  designate  those  who  shall  constitute  the  ap- 
pellate division  in  each  department;  and  he  shall  designate 
the  presiding  justice  thereof.  *  *  *  From  time  to  time 
as  the  terms  of  such  designations  expire,  or  vacancies  occur, 
he  shall  make  new  designations.  *  *  *  He  may  also  make 
temporary  designations  in  case  of  the  absence  or  inability  to 
act  of  any  justice  in  the  appellate  division,  or  in  case  the 
presiding  justice  of  any  appellate  division  shall  certify  to 
him  that  one  or  more  additional  justices  are  needed  for  the 
speedy  disposition  of  the  business  before  it. 

(1894,   VI,  2;    1899,   VI,  2,   see   1846,   VI,  6,    1869, 
VI,  7) 

200 


APPENDIX   I.— CONSTITUTION    OF   189 J,,    REARRANGED    AND    ANNOTATED 

Art.  VI,  Sec.  7  4.     Whenever  and  as  often  as  a  majority  of  the  judges 

of  the  court  of  appeals  shall  certify  to  the  governor  that 
said  court  is  unable,  by  reason  of  the  accumulation  of  causes 
pending  therein,  to  hear  and  dispose  of  the  same  with  reason- 
able speed,  the  governor  shall  designate  not  more  than  four 
justices  of  the  supreme  court  to  serve  as  associate  judges 
of  the  court  of  appeals.  The  justices  so  designated  shall  be 
relieved  from  their  duties  as  justices  of  the  supreme  court 
and  shall  serve  as  associate  judges  of  the  court  of  appeals 
until  the  causes  undisposed  of  in  said  court  are  reduced  to 
two  hundred,  when  they  shall  return  to  the  supreme  court. 
The  governor  may  designate  justices  of  the  supreme  court  to 
fill  vacancies. 

(1899,  VI,  7) 

By  the  Governor  5_     When    a  vacancy   shall   occur   otherwise   than   by   ex- 

Senat^     "  piration  of  term  in  the  office  of  chief  or  associate  judge  of 

Art.  VI,  Sec.  8  the   court   of    appeals,    the    same    shall   be    filled,    for    a    full 

term,  at  the  next  general  election  happening  not  less  than 
three  months  after  such  vacancy  occurs;  and  until  the  vacancy 
shall  be  so  filled,  the  governor,  by  and  with  the  advice  and 
consent  of  the  senate,  if  the  senate  shall  be  in  session,  or  if 
not  in  session  the  governor  may  fill  such  vacancy  by  appoint- 
ment. If  any  such  appointment  of  chief  judge  shall  be  made 
from  among  the  associate  judges,  a  temporary  appointment  of 
associate  judge  shall  be  made  in  like  manner;  but  in  such  case, 
the  person  appointed  chief  judge  shall  not  be  deemed  to  vacate 
his  office  of  associate  judge  any  longer  than  until  the  ex- 
piration of  his  appointment  as  chief  judge.  *  *  *  AH 
appointments  made  under  this  section  shall  continue  until  and 
including  the  last  day  of  December  next  after  the  election  at 
which  the  vacancy  shall  be  filled. 

(1846,  VI,  3,  as  amended,  1869,  see  1846,  VI,  2) 

Art.  VI,  Sec.  4  6.     When  a  vacancy  shall  occur  otherwise  than  by  expira- 

tion of  a  term  in  the  office  of  the  justice  of  the  supreme 
court  the  same  shall  be  filled  for  a  full  term,  at  the  next 
general  election ;  happening  not  less  than  three  months  after 
such  vacancy  occurs;  and,  until  the  vacancy  shall  be  so  filled, 
the  governor  by  and  with  the  advice  and  consent  of  the  senate, 
if  the  senate  shall  be  in  session,  or  if  not  in  session  the  gov- 
ernor may  fill  such  vacancy  by  appointment,  which  shall 
continue  until  and  including  the  last  day  of  December  next 
after  the  election  at  which  the  vacancy  shall  be  filled. 
(1846,  VI,  9,  as  amended,  1869) 

Art.  VI,  Sec.  15  7.     Vacancies  occurring  in  the  office  of  county  judge  or 

surrogate  shall  be  filled  in  the  same  manner  as  like  vacancies 
occurring  in  the  supreme  court. 

Art.  VIII,  Sec.  12  g.     The  members  of  the  [state  board  of  charities,  the  state 

commission  in  lunacy,  and  the  state  commission  of  prisons] 
shall  be  appointed  by  the  governor,  by  and  with  the  advice  and 
consent  of  the  senate. 

Art.  V,  Sec.  4  9.     A   superintendent  of  state  prisons  shall  be  appointed 

by  the  governor,  by  and  with  the  advice  and  consent  of  the 
senate. 

(1846,  V,  4,  as  amended,  1869) 

Art.  V.  Sec.  3  10.     A  superintendent  of  public  works  shall  be  appointed 

by  the  governor,  by  and  with  the  advice  and  consent  of  the 
senate.  *  *  *  The  governor,  by  and  with  the  advice  and 
consent  of  the  senate,  shall  have  power  to  fill  vacancies  in  the 
office  of   superintendent   of  public  works;   if   the  senate  be 

201 


APPENDIX 


By   the    Courts 
Art.    VI,   Sec.    7 


Art.    VI,   Sec.    2 


Art.   VI,   Sec.    19 


By  the  Comptroller 
Art.  V,  Sec.  4 


By  the  Superintendent 
of    Public   Works 
Art.   V,    Sec.   3 


Art.   V,    Sec.   3 


By  the  Superintendent 
of  State  Prisons 


Art.   V,  Sec. 


Merit  System  it 
Civil  Service 
Art.  V,   Sec.   9 


Election   or 

Appointment  of 

Statutory   Officers- 

County 

Art.   X,   Sec.   2 


City,   Town   and 

Village 

Art.    X,    Sec.    2 


not  in  session,  he  may  grant  commissions  which  shall  expire 
at  the  end  of  the  next  succeeding  session  of  the  senate. 
(1846,  V,  3,  as  amended,  1869) 

11.  The  court   [of  appeals]    shall  have  power  to  appoint 
*     *     *     its  reporter,  clerk  and  attendants. 

(1846,  VI,  2,  as  amended,  1869,   see  1846,  VI,  19) 

12.  [The  appellate  division  of  the   supreme  court]    shall 
have  power  to  appoint    *     *     *    ^^  reporter. 

13.  The  justices  of  the  appellate  division  in  each  depart- 
ment shall  have  power  to  appoint    *     *     *    a  clerk. 

14.  The    comptroller    shall    appoint    the    clerks    of    the 
prisons. 


(1846,  V,  4,  as  amended,  1876) 


15.  The  superintendent  of  public  works  shall  appoint  not 
more  than  three  assistant  superintendents  *  *  *.  Any 
vacancy  in  the  office  of  any  assistant  superintendent  shall  be 
filled  for  the  remainder  of  the  term  for  which  he  was  ap- 
pointed by  the  superintendent  of  public  works. 

(1846,  V,  3,  as  amended,  1876) 

16.  All  other  persons  employed  in  the  care  and  manage- 
ment of  the  canals,  except  collectors  of  tolls,  and  those  in 
the  department  of  the  state  engineer  and  surveyor,  shall  be 
appointed  by  the  superintendent  of  public  works. 

(1846,  V,  3,  as  amended,  1876) 

17.  [The  superintendent  of  state  prisons]  shall  appoint 
the  agents,  wardens,  physicians  and  chaplains  of  the  prisons. 
The  agent  and  warden  of  each  prison  shall  appoint  all  other 
officers  of  such  prison,  except  the  clerk,  subject  to  the  ap- 
proval of  the  satne  by  the  superintendent. 

(1846,  V,  4,  as  amended,  1876) 

Section  4.  Appointments  and  promotions  in  the  civil  ser- 
vice of  the  state,  and  of  all  the  civil  divisions  thereof,  in- 
cluding cities  and  villages,  shall  be  made  according  to  merit 
and  fitness  to  be  ascertained,  so  far  as  practicable,  by  exam- 
inations, which,  so  far  as  practicable,  shall  be  competitive; 
provided,  however,  that  honorably  discharged  soldiers  and 
sailors  from  the  army  and  navy  of  the  United  States  in  the 
late  civil  war,  who  are  citizens  and  residents  of  this  state, 
shall  be  entitled  to  preference  in  appointment  and  promotion, 
without  regard  to  their  standing  on  any  list  from  which  such 
appointment  or  promotion  may  be  made. 

Section  5.  All  county  officers,  whose  election  or  appoint- 
ment is  not  provided  for  by  this  constitution,  shall  be  elected 
by  the  electors  of  the  respective  counties  or  appointed  by 
the  boards  of  supervisors,  or  other  county  authorities,  as  the 
Jegislature  shall  direct. 

(1846,  X,  2,  without  change) 

2.  All  city,  town  and  village  officers,  whose  election 
or  appointment  is  not  provided  for  by  this  constitution,  shall 
be  elected  by  the  electors  of  such  cities,  towns  and  villages, 
or  of  some  division  thereof,  or  appointed  by  such  authorities 
tliereof,  as  the  legislature  shall  designate  for  that  purpose. 

(1846,  X,  2,  without  change) 

3.  All  other  officers,  whose  election  or  appointment  is 
not  provided  for  by  this  Constitution,  and  all  officers,  whose 

202 


APPENDIX    I.^CONSTITUTION    OF    189 Jf,    REARRANGED    AND    ANNOTATED 


offices  may  hereafter  be  created  by  law,  shall  be  elected  by  the 
people,  or  appointed  as  the  legislature  may  direct. 
(1846,  X,  2,  without  change;  see  IV,  15) 

Judicial  Officers  in  4_     AH  other  judicial  officers  in  cities,  whose  election  or 

Art^Vl    Sec    17  appointment    is    not    otherwise   provided    for    in    this    article 

shall  be  chosen  by  the  electors  of  such  cities,  or  appointed  by 
some  local  authority  thereof. 

(1846,  VI,  18,  as  amended,  1869;  see  1846,  VI,  17, 
18) 

5.  Except  as  herein  otherwise  provided,  all  judicial  offi- 
cers shall  be  elected  or  appointed  at  such  times  and  in  such 
manner  as  the  legislature  may  provide. 

(1846,  VI,  19,  as  amended,  1869,  see  1846,  VI,  18) 

Section  6.  In  case  of  the  impeachment  of  the  governor, 
or  his  removal  from  oft'ice,  death,  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  resignation,  or  absence 
from  the  state,  the  powers  and  duties  of  the  office  shall  de- 
volve upon  the  lieutenant-governor  for  the  residue  of  the  term, 
or  until  the  disability  shall  cease. 

(1777,  XX;  1821,  III,  6;  1846,  VI,  6) 

2.  If  during  a  vacancy  of  the  office  of  governor,  the 
lieutenant-governor  shall  be  impeached,  displaced,  resign,  die 
or  become  incapable  of  performing  the  duties  of  his  office, 
or  be  absent  from  the  state,  the  president  of  the  senate  shall 
act  as  governor  until  the  vacancy  be  tilled  or  the  disability 
shall  cease;  and  if  the  president  of  the  senate  for  any  of  the 
above  causes  shall  become  incapable  of  performing  the  duties 
pertaining  to  the  office  of  governor,  the  speaker  of  the  as- 
sembly shall  act  as  governor  until  the  vacancy  be  filled  or  the 
disability  shall  cease. 

(1777,  XXI;  1821,  III,  7;  1846,  IV,  7) 


Judicial   Officers 
Art.   VI,    Sec.    18 


Succession   to   Office 
of  Governor 
Art.   IV,   Sec.   6 


Art.   IV,   Sec.   7 


Installation 


General  Oath 
Art.   XIII,   Sec.    1 


Section  7.  [Before  any  person  shall  be  competent  to 
exercise  the  powers  of  any  office  to  which  he  shall  be  elected 
or  appointed,  he  shall  take  the  oath  and  give  bond  for 
security  whenever  oath  or  bond  are  required  as  follows :] 

2.  Members  of  the  legislature,  and  all  officers,  executive 
and  judicial,  except  such  inferior  officers  as  shall  be  by  law 
exempted,  shall,  before  they  enter  on  the  duties  of  their 
respective  offices,  take  and  subscribe  the  following  oath  or 
affirmation:  "I  do  solemnly  swear  (or  affirm)  that  I  will 
support  the  Constitution  of  the  United  States  and  the  Con- 
stitution of  the  State  of  New  York,  and  that  I  will  faithfully 

discharge  the  duties  of  the  office  of according 

to  the  best  of  my  ability." 

(1821,  VI;  1846,  XII,  1) 

And  all  such  officers  who  shall  have  been  chosen  at  any 
election  shall,  before  they  enter  on  the  duties  of  their  re- 
spective offices,  take  and  subscribe  the  oath  or  affirmation 
above  prescribed,  together  with  the  following  addition  there- 
to, as  part  thereof: 

"  And  I  do  further  solemnly  swear  (or  affirm)  that  I  have 
not  directly  or  indirectly  paid,  offered  or  promised  to  pay,  con- 
tributed or  offered  or  promised  to  contribute  any  money  or  other 
valuable  thing  as  a  consideration  or  reward  for  the  giving 
or  withholding  a  vote  at  the  election  at  which  I  was  elected 

203 


APPENDIX 


to  said  office,  and  have  not  made  any  promise  to  influence 
the  giving  or  withholding  any  such  vote,"  and  no  other  oath, 
declaration  or  test  shall  be  required  as  the  qualification  for 
any  office  of  public  trust. 
(Added,  1874) 


Giving   Bonds  for 

Seen  rity 

Art.   V,   Sec.    3 


Art.    V.    Sec.   4 


Additional  Sccufity 
Art.    X,    Sec.    1 


Art.   VI,    Sec.    13 


3.  [The  superintendent  of  public  works]  shall  be  required 
by  law  to  give  security  for  the  faithful  execution  of  his 
office  before  entering  upon  the  duties  thereof. 

(1846,  V,  3,  as  amended,  1876) 

4.  [The  superintendent  of  state  prisons]  shall  give  security 
in  such  amount,  and  with  such  sureties  as  shall  be  required 
l)y  law  for  the  faithful  discharge  of  his  duties. 

(1846,  V,  4,  as  amended,  1876) 

5.  [The  sheriffs  are  required  to  give  security  for  the 
faithful  performance  of  their  duties.] 

6.  [Sheriffs]  may  be  required  by  law  to  renew  their 
security  from  time  to  time. 

(1821,  IV,  8;  1846,  X,  1) 

7.  Before  the  trial  of  an  impeachment  the  members  of 
the  court  shall  take  an  oath  or  affirmation  truly  and  impar- 
tially to  try  the  impeachment  according  to  the  evidence. 

(1777,  XXXIII;  1821,  V,  2;  1846,  VI,  1) 


Legislators 

Term 

Art.   Ill,    Sec.   2 


Salaries 

Art.    Ill,    Sec.   6 


Privileges 

Art.   Ill,   Sec.    12 


Governor 

Term 

Art.   IV,   Sec. 

.Salary 

Art.   IV,   Sec. 


Personal  Rights 

Section  8.  [Persons  who  shall  be  elected  or  appointed  to 
offices  mentioned  below  and  who  qualify  by  taking  oath  and 
giving  bond  as  required,  shall  have  the  following  rights  as 
officers.] 

2.  [Senators  shall  have  the  right  to  hold  office]  for 
two  years. 

[Members  of  the  assembly  shall  have  the  right  to  hold 
office]   for  one  year. 

(1777,  IV,  XI;  1821,  I,  2;  1846,  III,  2) 

3.  Each  member  of  the  legislature  shall  receive  for  his 
services  an  annual  salary  of  one  thousand  five  hundred  dol- 
lars. The  members  of  either  house  shall  also  receive  the 
sum  of  one  dollar  for  every  ten  miles  they  shall  travel  in 
going  to  and  returning  from  their  place  of  meeting,  once  in 
each  session,  on  the  most  usual  route.  Senators,  when  the 
senate  alone  is  convened  in  extraordinary  session,  or  when 
serving  as  members  of  the  court  for  the  trial  of  impeach- 
ments, and  such  members  of  the  assembly,  not  exceeding  nine 
in  number,  as  shall  be  appointed  managers  of  an  impeachment, 
shall  receive  an  additional  allowance  of  ten  dollars  a  day. 

(1821,  1,9;  1846,  111,6) 

4.  For  any  speech  or  debate  in  either  house  of  the  legis- 
lature, the  members  shall  not  be  questioned  in  any  other 
place. 

(1846,   III,   12) 

5.  [The  governor  shall  have  the  right  to]  hold  his  office 
for  two  years.  *  *  *  He  shall  receive  for  his  services  an 
annual  salary  of  ten  thousand  dollars,  and  there  shall  be  pro- 
vided for  his  use  a  suitable  and  furnished  executive  residence. 

(1777,  XVIII;   1821,  III,  1,  4;   1846,  IV,  1,  4;  as 
amended  1874) 

204 


APPENDIX    I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 


Lieut  cnant-Govcr, 

Term 

Alt.   IV,  Sec.   1 

Salary 

Art.   IV,   Sec.   8 


Secretary  of  State, 

Comptroller, 

Treasurer,  Attorney- 

General,  State 

Engineer 

Term 

Art.   V.  Sec.   1 

Salary 

Art.   V,  Sec.   1 


Superintendent   of 

Public  Works 

Term 

Art.   V,   Sec.   3 


Assistant 

Superintendent 

Public  Works 

Term 

Art.   V,   Sec.   3 

Salary 

Art.    V,    Sec.    3 


Sutcriutcndcnl    of 

Slate  Prisons 

Term 

Art.    V,    Sl^c.    4 

Judges   of  Court   of 

Appeals 

Term 

Art.  VI,  Sec.  7 


Presiding  Justice  of 

Appellate  Division 

'i'erm 

Art.  VI,  Sec.  2 


Justices  of  Aj'pcUalc 

IHvision 

Term 

Art.    VI,   Sec.   2 


Justices  of  the 
Supreme  Court 


Art.  VI,   Sec.  4 


Salaries  of  Judges 
and    Justices 
Art.   VI,   Sec.    12 


6.  [The  lieutcnaut-govenior  shall  have  the  right  to  hold 
office]  for  the  same  term  [as  the  governor].  *  *  *  [He] 
shall  receive  for  his  services  an  annual  salary  of  five  thousand 
dollars,  and  shall  not  receive  or  l)e  entitled  to  any  other  com- 
pensation, fee  or  perquisite,  for  any  duty  or  service  he  may  be 
required  to  perform  by  the  constitution  or  by  law. 

(1777.  XX;  1821,  III,  1;  1846,  IV,  1,  8;  as  atncndcd 
1874) 

7.  [The  secretary  of  state,  comptroller,  treasurer,  attorney- 
general,  state  engineer  and  surveyor  shall  have  the  right  to] 
hold  their  offices  for  two  years,  except  as  provided  in  [article 
XIV,  section  5].  Each  of  the  officers  in  this  [paragraph] 
named  *  *  *,  shall  at  stated  times  during  his  continuance 
in  office,  receive  for  his  services  a  compensation  whicli  shall 
not  be  increased  or  diminished  during  the  term  for  which 
he  shall  have  been  elected ;  nor  shall  he  receive  to  his  use 
any  fees  or  perquisites  of  office  or  other  compensation. 

(1846,  V,  1,  2) 

8.  [The  superintendent  of  public  works  shall  have  the 
right  to]  hold  his  office  until  the  end  of  the  term  of  the  gov- 
ernor by  whom  he  was  nominated,  and  until  his  successor  is 
appointed  and  qualified.  He  shall  receive  a  compensation  to 
be  fixed  by  law. 

(1846,  V,  3,  as  amended,  1876) 

9.  [The  assistant  superintendents  of  public  works]  shall 
[have  the  right  to]  hold  their  offices  for  three  years,  subject 
to  suspension  or  removal  by  the  superintendent  of  pul)lic 
works,  whenever,  in  his  judgment,  the  public  interest  shall  so 
require.  [They]  shall  receive  for  their  services  a  compensa- 
tion to  be  fixed  by  law. 

(1846,  V,  3,  as  amended,  1876) 

10.  [The  superintendent  of  state  prisons  shall  have  the  right 
to  I  hold  his  office  for  five  years,  unless  sooner  removed. 

(1846,  V,  4,  as  amended,  1876) 

11.  The  official  terms  of  the  chief  judge  and  associate 
judges  [of  the  court  of  appeals]  shall  be  fourteen  years  from 
and  including  the  first  day  of  January  next  and  after  their 
election. 

(1869,  VI,  2;  1894,  VI,  2) 

12.  [The  presiding  justice  of  the  appellate  division  shall 
be  designated  by  the  governor  to]  act  as  such  during  his  term 
of  office. 

(1846,  VI,  6;  1869,  VI,  7) 

13.  Tlie  other  justices  [of  the  appellate  division]  shall  be 
designated  for  terms  of  five  years  or  the  unexpired  portions 
of  their  respective  terms  of  offices,  if  less  than  five  years. 

(1846,  VI,  6;  1869,  VI,  7) 

14.  The  official  terms  of  the  justices  of  the  supreme 
court  shall  be  fourteen  years  from  and  including  the  first  day 
of  January  next  after  their  election.     *    *     * 

(1894,  VI,  4;  see   1777,  XXIV;   1821,  V,  3;   1846, 
VI,  4) 

15.  Each  justice  of  the  supreme  court  shall  receive  from 
the  state  the  sum  of  ten  thousand  dollars  per  year.  Those  as- 
signed to  the  appellate  divisions  in  the  third  and  fourth  de- 
partments shall  each  receive  in  addition  the  sum  of  two 
thousand  dollars,  and  the  presiding  justices  thereof  the  sum  of 

205 


APPENDIX 


two  thousand  five  hundred  dollars  per  year.  Those  justices 
elected  in  the  first  and  second  judicial  departments  shall  con- 
tinue to  receive  from  their  respective  cities,  counties  or  dis- 
tricts, as  now  provided  by  law,  such  additional  compensation 
as  will  make  their  aggregate  compensation  what  they  are  now 
receiving.  Those  justices  elected  in  any  judicial  department 
other  than  the  first  or  second,  and  assigned  to  the  appellate 
divisions  of  the  first  or  second  departments  shall,  while  so 
assigned,  receive  from  those  departments  respectively,  as 
now  provided  by  law,  such  additional  sum  as  is  paid  to  the 
justices  of  those  departments.  A  justice  elected  in  the  third 
or  fourth  department  assigned  by  the  appellate  division  or 
designated  by  the  governor  to  hold  a  trial  or  special  term  in 
a  judicial  district  other  than  that  in  which  he  is  elected  shall 
receive  in  addition  ten  dollars  per  day  for  expenses  while  act- 
ually so  engaged  in  holding  such  term,  which  shall  be  paid  by 
the  state  and  charged  upon  the  judicial  district  where  the 
service  is  rendered.  The  compensation  herein  provided  shall 
be  in  lieu  of  and  shall  exclude  all  other  compensation  and 
allowance  to  said  justices  for  expenses  of  every  kind  and  na- 
ture whatsoever.  The  provisions  of  this  section  shall  apply 
to  the  judges  and  justices  now  in  office  and  to  those  here- 
after elected. 


Art.   VI.   Sec.  20 


County  Judges 

Term 

Art.   VI,    Sec.    14 


Salary 

Art.   VI,   Sec.   14 


Surrogates 

Term 

Art.   VI,  Sec.   IS 


Salary- 
Art.   VI,   Sec.    15 


Guaranty  to  County 
Judge  and  Surrogate 
Art.   VI,   Sec.    15 


City  Courts 

Term 

Art.  VI,  Sec.  17 


Justices  of  the  Peace 

in   Towns 

Term 

Art.  VI,  Sec.  17 


Time  of  Expiration 

of  Terms 

Art.    XII,   Sec.    3 


(1909,  VI,  12;  1846,  VI,  7;  1869,  VI,  14) 

16.  No  judicial  ofliicer,  except  justices  of  the  peace,  shall 
receive  to  his  own  use  any  fee  or  perquisite  of  office. 

(1846,  VI,  20;  1869,  VI,  21) 

17.  [The  term  of  office  of  the  county  judges  shall  be]  six 
years  from  and  including  the  first  day  of  January  following 
their  election. 

(1777,  XXIV,  XXVIII;  1821,  V,  6;  1846,  VI,  15? 
1869,  VI,  14) 

His  salary  shall  be  established  by  law,  payable  out  of  the 
county  treasury. 

(1846,  VI,  15;  1869,  VI,  14) 

18.  [The]  terms  of  office  [of  surrogates]  shall  be  six 
years,  except  in  the  county  of  New  York,  where  they  shall 
continue  to  be  fourteen  years. 

(1846,  VI,  15,  as  amended  1869) 

When  the  surrogate  shall  be  elected  as  a  separate  officer 
his  salary  shall  be  established  by  law,  payable  out  of  the 
county  treasury. 

(1846,  VI,  15,  as  amended  1869) 

The  compensation  of  any  county  judge  or  surrogate  shall 
not  be  increased  or  diminished  during  his  term  of  office. 
(1846,  VI,  IS,  as  amended  1869) 

19.  Justices  of  the  peace  and  District  Court  justices  [shall 
hold]  for  such  terms  *  *  *  ^s  are  or  shall  be  prescribed 
by  law. 

(1846,  VI,  18,  as  amended  1869) 

20.  [The]  term  of  office  [of  justices  of  the  peace  in 
towns]  shall  be  four  years.  In  case  of  an  election  to  fill  a 
vacancy  occuring  before  the  expiration  of  a  full  term,  they 
shall  hold  for  the  residue  of  the  unexpired  term. 

(1821,  IV,  7;  1846,  VI,  17;  1869;  18) 

21.  The  term  of  every  city  [and  county  "^officer,  set  forth 
in  article  II,  section  7,  paragraph  7]  shall  expire  at  the  end 
of  an  odd-numbered  year. 

206 


APPENDIX    I.— CONSTITUTION    OF    189J,.    REARRANGED    AND    ANNOTATED 


Clerks,  Co-urt  of 

Appeals  and  Appellate 

Division 

Salary 

Art.  VI.  Sec.  19 


General  Provisions 

Term 

Art.  X,   Sec.   3 


Salary 

Art.  X,  Sec.  9 


22.  The  clerk  of  the  court  of  appeals  and  the  clerks  of 
the  appellate  division  shall  receive  compensation  to  be  estab- 
lished by  law  and  paid  out  of  the  public  treasury. 

(1846,  VI,  19;  1869,  VI,  20) 

23.  When  the  duration  of  any  office  is  not  provided  by 
this  constitution,  it  may  be  declared  by  law,  and  if  not  so 
declared,  such  office  shall  be  held  during  the  pleasure  of  the 
authority  making  the  appointment. 

(1821.  IV,  16;  1846,  X,  3) 

24.  Each  of  the  *  *  *  state  officers  named  in  the  con- 
stitution, shall,  during  his  continuance  in  office,  receive  a  com- 
pensation, to  be  fixed  by  law,  which  shall  not  be  increased 
or  diminished  during  the  term  for  which  he  shall  have  been 
elected  or  appointed ;  nor  shall  he  receive  to  his  use  any  fees 
or  perquisites  of  office  or  other  compensation. 
(1846,  X,  9;  added  1874) 


Members  of  the 
Legislature 
Art.   Ill,   Sec.   7 


Art.   Ill,  Sec. 


Judges  and  Justices 
Art.  VI,  Sec.   10 


Art.   VI,   Sec.   2 


Art.  VI,   Sec.   20 


Disabilities  of  Officers 

Section  9.  [Persons  who  are  elected  or  appointed  to  the 
offices  mentioned  below  and  who  qualify  shall  be  under  the 
following  disabilities]  : 

2.  No  member  of  the  legislature  shall  receive  any  civil 
appointment  within  this  state,  or  the  senate  of  the  United 
States,  from  the  governor,  the  governor  and  senate,  or  from 
the  legislature,  or  from  any  city  government,  during  the  time 
for  which  he  shall  have  been  elected ;  and  all  such  appoint- 
ments and  all  votes  given  for  any  such  member  for  any  such 
office  or  appointments  shall  be  void.  *  *  *  And  if  any 
person  shall,  after  his  election  as  a  member  of  the  legislature, 
be  elected  to  congress,  or  appointed  to  any  office,  civil  or 
military,  under  the  government  cf  the  United  States,  or  under 
any  city  government,  his  acceptance  thereof  shall  vacate  his 
seat. 

(1821,  I,  10,  11;  1846,  III,  7,  8.    See  1777,  XXII) 

3.  The  judges  of  the  court  of  appeals  and  the  justices  of 
the  supreme  court  shall  not  hold  any  other  office  or  public 
trust.  AH  votes  for  any  of  them,  for  any  other  than  a  judicial 
office,  given  by  the  legislature  or  the  people,  shall  be  void. 

(1821,  V,  7;  1846,  VI,  8;  1869,  VI,  9.     See  1777, 
XXV) 

4.  No  justice  of  the  appellate  division  shall,  within  the 
department  to  which  he  may  be  designated  to  perform  the 
duties  of  an  appellate  justice,  exercise  any  of  the  powers  of 
a  justice  of  the  supreme  court,  other  than  those  of  a  justice 
out  of  court,  and  those  pertaining  to  the  appellate  division 
or  to  the  hearing  and  decision  of  motions  submitted  by  con- 
sent of  counsel,  but  any  such  justice  when  not  actually  en- 
gaged in  performing  the  duties  of  such  appellate  justice  in 
the  department  to  which  he  is  designated,  may  hold  any  term 
of  the  supreme  court  and  exercise  any  of  the  powers  of  a 
justice  of  the  supreme  court  in  any  county  or  judicial  district 
in  any  other  department  of  the  state. 

(1894,  VI,  2;  amended  1905;  see  1846,  VI,  6;  1869, 
VI,  7) 

5.  Nor  shall  any  judge  of  the  court  of  appeals,  or  justice 
of  the  supreme  court,  or  any  county  judge  or  surrogate  here- 
after elected  in  a  county  having  a  population  exceeding  one 

207 


APPENDIX 


Art.   VI,    Sec.    15 


hundred  and  twenty  thousand,  practice  as  an  attorney  or  coun- 
selor in  any  court  of  record  in  this  state,  or  act  as  referee. 
The  legislature  may  impose  a  similar  prohibition  upon  county 
judges  and  surrogates  in  other  counties. 
(1846,  VI,  21;  added  1869) 

6.  No  county  judge  or  surrogate  shall  hold  office  longer 
than  until  and  including  the  last  day  of  December  next  after 
he  shall  be  seventy  years  of  age. 

(1846,  VI,  13,  15;  as  amended  1869) 


7.  No  person  shall  hold  the  office  of  judge  or  justice  of 
any  court  longer  than  until  and  including  the  last  day  of 
December  next  after  he  shall  be  seventy  years  of  age. 

(1846,  VI,  13;  as  amended  1869;  see  1777,  XXIV; 
1821,  V,  3) 


Art.   VI,   Sec.   3 


Art.   VI,    Sec.    13 


Sheriffs 

Art.  X,  Sec.   1 


General  Provisions 
Art.   X,   Sec.    S 


Art.   X,   Sec.  9 


.\rt.  XIII,  Sec.  5 


Criminal   Prosecution 
Art.  XIII,  Sec.  2 


8.  No  judge  or  justice  shall  sit  in  the  appellate  division 
or  in  the  court  of  appeals  in  review  of  a  decision  made  by 
him  or  by  any  court  of  which  he  was  at  the  time  a  sitting 
member. 

(1846,  VI,  8;  as  amended  1869;  see  1777,  XXXII; 
1821,  V,  1) 

9.  No  judicial  officer  shall  exercise  his  office,  after  articles 
of  impeachment  against  him  shall  have  been  preferred  to 
the  senate,  until  he  shall  have  been  acquitted. 

(1777,  XXXII;  1821,  V,  1;  1846,  VI,  1) 

10.  Sheriffs  shall  hold  no  other  office,  and  be  ineligible 
for  the  next  term  after  the  termination  of  their  offices. 

(1777,  XXVI;  1821,  IV,  8;  1846,  X,  1) 

11.  No  person  appointed  to  till  a  vacancy  [in  an  elective 
office]  shall  hold  his  office  by  virtue  of  such  appointment 
longer  than  the  commencement  of  the  political  year  next  suc- 
ceeding the  iirst  annual  election  after  the  happening  of  the 
vacancy. 

(1846,  X,  5) 

12.  No  officer  whose  salary  is  fixed  by  the  Constitution 
shall  receive  any  additional  compensation. 

(1846,  X,  9;  added  1874) 

13.  No  public  officer,  or  person  elected  or  appointed  to 
a  public  office,  under  the  laws  of  this  state,  shall  directly  or 
indirectly  ask,  demand,  accept,  receive  or  consent  to  receive 
for  his  own  use  or  benefit  or  for  the  use  or  benefit  of  another, 
any  free  pass,  free  transportation,  franking  privilege  or  dis- 
crimination in  passenger,  telegraph  or  telephone  rates,  from 
any  person  or  corporation,  or  make  use  of  the  same  himself 
or  in  conjunction  with  another. 

14.  Any  person  holding  office  under  the  laws  of  this  state, 
who,  except  in  payment  of  his  legal  salary,  fees_  or  perquisites, 
shall  receive  or  consent  to  receive,  directly  or  indirectly,  any- 
thing of  value  or  of  personal  advantage,  or  the  promise 
thereof,  for  performing  or  omitting  to  perform  any  official 
act,  or  with  the  express  or  implied  understanding  that  his 
official  action  or  omission  to  act  is  to  be  in  any  degree  in- 
fluenced thereby,  shall  be  deemed  guilty  of  afelony.  This 
[paragraph]  shall  not  affect  the  validity  of~  any  existing 
statute  in  relation  to  the  offense  of  bribery. 

(1846,  XV,  2;  added  1874) 

208 


APPENDIX   I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


Removal  from  Office 

Section  10.  The  treasurer  may  be  suspended  from  office 
by  the  governor,  during  the  recess  of  the  legislature,  and  until 
thirty  days  after  the  commencement  of  the  next  session  of  the 
legislature,  whenever  it  shall  appear  to  him  that  such  treasurer 
has,  in  any  particular,  violated  his  duty. 
(1846,  V,  7) 


Treasurer 
Art.  V.  Sec.  7 


Superintendent 
Public  Works 
Art.   V,   Sec.   3 


Superintendent 

Prisons 

Art.   V,   Sec.   4 


State   Boards 
Art.  VIII,  Sec.   12 


Assistants 
Art.   V,    Sec.   3 


Art.   V,    Se 


Counfv  Officers 
Art.   X,   Sec.    1 


General    Provisions 
Art.   X,   Sec.   7 


Judges 

Art.  VI,  Sec.   11 


2.  [The  superintendent  of  public  wrorks]  may  be  sus- 
pended or  removed  froin  office  by  the  governor,  whenever, 
in  his  judgment,  the  public  interest  shall  so  require;  but 
in  case  of  the  removal  of  such  superintendent  of  public 
works  from  office,  the  governor  shall  file  with  the  secretary 
of  state  a  statement  of  the  cause  of  such  removal,  and  shall 
report  such  reinoval  and  the  cause  thereof  to  the  legislature 
at  its  next  session. 

(1846,  V,  3,  as  amended,  1876) 

3.  The  governor  may  remove  the  superintendent  [of 
prisons]  for  any  cause  at  any  time,  giving  to  him  a  copy  of 
the  charges  against  him,  and  an  opportunity  to  be  heard  in 
his  defense. 

(1846,  V,  3,  as  amended,  1876) 

4.  Any  member  [of  the  state  board  of  charities,  the  state 
commission  in  lunacy,  and  the  state  cotnmission  of  prisons] 
may  be  removed  from  office  by  the  governor  for  cause,  an 
opportunity  having  been  given  him  to  be  heard  in  his  defense. 

5.  [The  assistant  superintendents,  may  be  suspended  or 
removed]  by  the  superintendent  of  public  works  whenever, 
in  his  judgment,  the  public  interest  shall  so  require  *  *  * 
but  in  case  of  the  suspension  or  removal  of  any  such  assistant 
superintendent  by  him,  he  shall  at  once  report  to  the  gov- 
ernor, in  writing,  the  cause  of  such  removal. 

(1846,  V,  3,  as  amended,  1876) 

6.  All  other  persons  *  *  *  appointed  by  the  superin- 
tendent of  public  works  [shall]  be  subject  to  suspension  or 
removal  by  him. 

(1846,  V,  3,  as  amended.  1876) 

7.  The  governor  may  remove  any  officer,  in  [article  III, 
section  2,  paragraph  8,]  mentioned,  within  the  term  for  which 
he  shall  have  been  elected ;  giving  to  such  officer  a  copy  of 
the  charges  against  him,  and  an  opportunity  of  being  heard 
in  his  defense. 

(1821,  IV,  8;  1846,  X,  1) 

8.  Provision  shall  be  made  by  law  for  the  removal  for 
misconduct  or  malversation  in  office  of  all  oft'icers,  except 
judicial,  whose  powers  and  duties  are  not  local  or  legisla- 
tive and  who  shall  be  elected  at  general  elections,  and  also 
for  suppying  vacancies  created  by  such  removal. 

(1846,  X,  7) 

9.  Judges  of  the  court  of  appeals  and  justices  of  the 
supreme  court,  may  be  removed  by  concurrent  resolution  of 
both  houses  of  the  legislature,  if  two-thirds  of  all  the  mem- 
bers elected  tO'  each  house  concur  therein.  All  other  judicial 
officers,  except  justices  of  the  peace  and  judges  or  justices 
of  inferior  courts  not  of  record,  may  be  removed  by  the 
senate,  on  the  recommendation  of  the  governor,  if  two-thirds 
of  all  the  members  elected  to  the  senate  concur  therein.     But 

209 


APPENDIX 


District    Attorney 
Art.  XIII,  Sec.  6 


Justices   of  Peace 
Art.  VI,  Sec.   17 


no  officer  shall  be  removed  by  virtue  of  this  [paragraph] 
except  for  cause,  which  shall  be  entered  on  the  journals,  nor 
unless  he  shall  have  been  served  with  a  statement  of  the 
cause  alleged,  and  shall  have  had  an  opportunity  to  be  heard. 
On  the  question  of  removal,  the  yeas  and  nays  shall  be  entered 
on  the  journal. 

(1846,  VI,  11;  see  1821,  I,  13) 

10.  Any  district  attorney  who  shall  fail  faithfully  to 
prosecute  a  person  charged  with  the  violation  in  his  county 
of  any  provision  of  [article  III,  section  9,  paragraphs  13  and 
14,  or  of  article  XIII,  sections  16  and  17]  which  may  come 
to  his  knowledge,  shall  be  removed  from  office  by  the  gov- 
ernor, after  due  notice  and  an  opportunity  of  being  heard 
in  his  defense. 

(1846,  XV,  4;  added,  1874) 

11.  Justices  of  the  peace  and  judges  or  justices  of  inferior 
courts  not  of  record,  and  their  clerks  may  be  removed  for 
cause,  after  due  notice  and  an  opportunity  of  being  heard  by 
such  courts  as  are  or  may  be  prescribed  by  law. 

(1846,  VI,  17;  1869,  VI,  18;  see  1821,  IV,  7) 


Court    Officers 
Art.  VI,   Sec.   7 


Art.   VI,   Sees.  2,   19 


Impeachment 
Art.  VI,   Sec.   13 


Ouster 

Art.  XIII,  Sec.  5 


Office    Declared 

Vacant 

Art.    X,    Sec.    8 


Sheriff's  Office 
Art.   X,   Sec.    1 


12.  [The  court  of  appeals  shall  have  power]  to  remove 
[its  reporter,  clerk  and  attendants] 

(1846,  VI,  2;  as  amended  1869;  see  1846,  VI,  8,  19) 

13.  [The  appellate  division  of  the  supreme  court  shall 
have  power  to  remove  the  reporter  and  the  clerk.] 

14.  [Any  officer  may  be  impeached]. 

(1777,  XXXIII;  1821,  V,  2;  1846,  VI,  1) 

15.  A  person  who  violates  any  provision  of  [article  III, 
section  9,  paragraph  13]  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  forfeit  his  office  at  the  suit  of  the  attor- 
ney-general. 

16.  The  legislature  may  declare  the  cases  in  which  any 
office  shall  be  deemed  vacant  W'hen  no  provision  is  made  for 
that  purpose  in  this  Constitution. 

(1846,  X,  8) 

17.  The  offices  [of  sheriffs]  shall  be  deemed  vacant  [in 
default  of  giving  the  new  security  required  under  article 
III,  section  7,  paragraph  6]. 

(1821,  IV,  8;  1846,  X,  1) 


Article  IV 


Legislature 
Composition 


Senate 
Composition 
Art.  Ill,  Sec.  2 


President 

Art.    IV.    Sec.   7 


THE  LEGISLATURE 

Organisation 

Section  1.     [The  legislature  shall  consist  of  two  chambers 
—the  Senate  and  the  Assembly]. 

Section  2.     The    senate    shall    consist    of    fifty    members, 
except  as     *    *    *    provided   [in  article  II,  section  9]. 

(1777,  X;    amendment  of    1801;    1821,   I,  2;    1846, 
III,  2) 

2.     [The    lieutenant-governor]    shall   be   president   of    the 
senate,  but  shall  have  only  a  casting  vote  therein. 
(1777,  XX;  1821,  III,  7;  1846,  IV,  7) 

210 


APPENDIX   I.— CONSTITUTION    OF   ISQJf,    REARRANGED    AND    ANNOTATED 


Temporary   President 
Art.  Ill,   Sec.   10 


3.  The  senate  shall  choose  a  temporary  president  to  pre- 
side in  the  case  of  the  absence  or  impeachment  of  the_  lieu- 
tenant-governor, or  when  he  shall  refuse  to  act  as  president, 
or  shall  act  as  Governor. 

(1777,  XXI;  1821,  I,  3;  1846,  III,  10) 


Assembly 
Composition 
Art.  Ill,   Sec.  2 


Impeachment 
Art.   VI,  Sec.   13 


Section  3.     The   assembly    shall   consist   of    one   hundred 
and  fifty  members. 

(1777,  IV;   amendment  of   1801;   1821,  I,  2;   1846, 
III,  2) 

2.    The  assembly  shall  have  the  povirer  of  impeachment, 
by  a  vote  of  a  majority  of  all  the  members  elected. 
(1777,  XXXIII;  1821,  V,  2;  1846,  VI,  1) 


Rules  of  Procedure 
Art.   Ill,  Sec.    10 


Record 

Art.   III.  Sec. 


Sessions  Public 
Art.   Ill,   Sec.   11 


Adjournment 
Art.   Ill,   Sec. 


Political  Year 
Art.  X,  Sec.  6 


Regular  Meeting 
Art.   X,    Sec.   6 


Special  Session 
Art.   IV,   Sec.  4 


Rules  Regulating  Procedure 

Section  4.  [Each  house  shall  be  governed  in  its  official 
action  by  the  following  rules]  : 

1.  A  majority  of  each  house  shall  constitute  a  quorum 
to  do  business. 

(1777,  IX;  1821,  I,  3;  1846,  III,  10) 

2.  [In  so  far  as  not  herein  provided]  each  house  shall 
determine  the  rules  of  its  own  proceedings. 

(1821,  I,  3;  1846,  III,  10;  see  1777,  IX) 

3.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  publish  the  same,  except  such  parts  as  may  require 
secrecy. 

(1777,  XV;  1821,  I,  4;  1846,  III.  11) 

4.  The  doors  of  each  house  shall  be  kept  open,  except 
when  the  public  welfare  shall  require  secrecy. 

(1777,  XV;  1821,  I,  4;  1846,  III,  11) 

5.  Neither  house  shall,  without  the  consent  of  the  other, 
adjourn  for  more  than  two  days. 

(1777,  XIV;  1821,  I,  4;  1846,  III,  11) 

Section  5.     The  political  year  and  the  legislative  term  shall 
begin  on  the  first  day  of  January. 
(1821,  I,  14;  1846,  X,  6) 

2.  The  legislature  shall,  every  year,  assemble  on  the  first 
Wednesday  in  January. 

(1821,  I,   14;   1846,  X,  6) 

3.  [The  legislature  shall  assemble  in  extraordinary  session 
when  convened  by  the  governor.] 


Enacting  Clause 
Art.   Ill,  Sec.   1' 


Introduction  of  Bills 
Art.   Ill,  Sec.   13 


Rules  Regulating  the  Enactment  of  Lazvs 

Section  6.  The  enacting  clause  of  all  bills  shall  be,  "  The 
People  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows,"  and  no  law  shall  be  enacted 
except  by  bill. 

(1777,  XXXI;  1846,  III,  14) 

Section  7.  Any  bill  may  originate  in  either  house  of  the 
legislature. 

(1821,  1,8;  1846,  III,  13) 

211 


APPENDIX 


Bills  Must  Be  Printed 

and  Laid  on  Desks  of 

Members 

Art.   Ill,  Sec.   15 


No  Amendment  o 
Last  Reading 
Art.  Ill,  Sec.  15 


Majoritv   Required   to 

Pass  Bill 

Art.   Ill,  Sec.   IS 


Amendment  by  Otlu 

House 

Art.   Ill,  Sec.   13 


Veto 

Art.    IV,    Sec.   9 


Veto 
Art 


0  of  Money  Bills 
.   IV.   Sec.   9 


Section  S.  No  bill  shall  be  passed  or  become  a  law  unless 
it  shall  have  been  printed  and  laid  upon  the  desks  of  the 
members,  in  its  final  form,  at  least  three  calendar  legislative 
days  prior  to  its  final  passage,  unless  the  governor  shall  have 
certified  to  the  necessity  of  its  immediate  passage,  under  his 
hand  and  the  seal  of  the  state. 

Section  9.     Upon  the  last  reading  of  a  bill,  no  amendment 
thereof  shall  be  allowed,  and  the  question  upon  its  final  pas- 
sage shall  be  taken  immediately  thereafter  and  the  yeas  and 
navs  entered  on  the  journal. 
(1846,  III,  15) 

Section  10.     [No]   bill   [shall]   be  passed  or  bccoine  a  law, 
except  by  the  assent  of  a  majority _of  the  members  elected 
to  each  branch  of  the  legislature. 
(1846,  III,  15) 

Section  11.  All  bills  passed  by  one  house  may  be  amended 
by  the  other. 

(1821,  I,  8;   1846,  III,  13) 

Section  12.  Every  bill  which  shall  have  passed  the  senate 
and  assembly  shall,  before  it  becomes  a  law,  be  presented  to 
the  governor;  if  he  approves,  he  shall  sign  it;  but  if  not, 
he  shall  return  it  with  his  objections  to  the  house  in  which 
it  shall  have  originated,  which  shall  enter  the  objections  at 
large  on  the  journal,  and  proceed  to  reconsider  it.  If  after 
such  reconsideration,  two-thirds  of  the  members  elected  to 
that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent  to- 
gether with  the  objections,  to  the  other  house  by  which  it 
shall  likewise  be  reconsidered;  and  if  approved  by  two-thirds 
of  the  members  elected  to  that  house,  it  shall  become  a  law 
notwithstanding  the  objections  of  the  governor.  In  all  such 
cases,  the  votes  in  both  houses  shall  be  determined  by  yeas 
and  nays,  and  the  names  of  the  members  voting  shall  be 
entered  on  the  journal  of  each  house  respectively.  If  any  bill 
shall  not  be  returned  by  the  governor  within  ten  days  (Sun- 
days excepted)  after  it  shall  have  been  presented  to  him. 
the  same  shall  be  a  law  in  like  manner  as  if  he  had  signed 
it,  unless  the  legislature  shall,  bv  their  adjournment,  prevent 
its  return,  in  which  case  it  shall  not  become  a  law  without 
the  approval  of  the  governor.  No  bill  shall  become  a  law 
after  the  final  adjournment  of  the  legislature,  unless  approved 
bv  the  governor  within  thirty  days  after  such  adjournment. 
(1821.  I,  12;  1846,  IV,  9;  amended  1874;  see  1777, 
HI) 

2.  If  any  bill  presented  to  the  governor  contain  several 
items  of  appropriation  of  money,  he  may  obiect  to  one  or 
more  of  such  items,  while  approving  of  the  other  portion  of 
the  bill.  In  such  case,  he  shall  append  to  the  bill,  at  the 
time  of  signing  it,  a  statement  of  the  items  to  which  he  ob- 
jects; and  the  appropriation  so  objected  to  shall  not  take 
eflfect.  If  the  legislature  be  in  session,  he  shall  transmit  to 
the  house  in  which  the  bill  originated  a  copy  of  such  state- 
ment, and  the  items  objected  to  shall  be  separately  considered. 
If  on  reconsideration  one  or  more  of  such  items  be  anproved 
bv  two-thirds  of  the  members  elected  to  each  house,  the  same 
shall  be  part  o£  the  law.  notwithstnnding  the  objections  of 
the  governor.  All  the  provisions  of  tliis  sect'on.  in  relation  to 
bills  not  approved  bv  the  governor,  shall  apply  in  cases  in 
which  he  shnll  withhold  his  approval  from  any  items  con- 
tained in  a  bill  appropriating  money. 

(1846,  IV,  9,  as  amended  1874) 

212 


APPENDIX   I.— CONSTITUTION    OF    189k,    REARRANGED    AND    ANNOTATED 


Re-enactment 
Art.  Ill,  Sec.   17 


Private  and  Local 

Bills 

Art.   Ill,  Sec.   16 


Local  and  Private 
Bills  Reported  by 
a  Commission 
Art.   Ill,   Sec.   23 


Aptropriation  Bills 
Art.   Ill,   Sec.   20 


Art.   Ill,   Sec.   22 


Creatinp  Indebtedness 
Art.  Vil,  Sec.  4 


Art.  VII,  Sec.  4 


Art,  VII,  Sec.  4 


Section  13.  No  act  shall  be  passed  which  shall  provide 
that  any  existing  law,  or  any  part  thereof,  shall  be  made  or 
deemed  a  part  of  said  act,  or  which  shall  enact  that  any  ex- 
isting? law,  or  part  thereof,  shall  be  applicable,  except  by  in- 
serting it  in  such  act. 

(1846,  III,  17;  added  1874) 

Section  14.     No  private  or  local  bills,  which  may  be  passed 
by  the  legislature,  shall  embrace  more  than  one  subject,  and 
that  shall  be  expressed  in  the  title. 
(1846,  I  IT,  16) 

Section  15.     Sections   [13  and  14]   of  this  article  shall  not 
apply  to  any  bill,  or  the  amendments  to  any  bill,  which  shall 
be   reported   to   the   legislature   by   commissioners   who   have 
been  appointed  pursuant  to  law  to  revise  the  statutes. 
(1846,  III,  25;  added  1874) 

Section  16.  The  assent  of  two-thirds  of  the  members 
elected  to  each  branch  of  the  legislature  shall  be  requisite  to 
every  bill  appropriating  the  public  moneys  or  property  for 
local  or  private  purposes. 

(1821,  VII,  9;  1846,1,9) 

2.  No  provision  or  enactment  shall  be  embraced  in  the 
annual  appropriation  or  supply  bill,  unless  it  relates  specifically 
■to  some  particular  appropriation  in  the  bill ;  and  any  such 
provision  or  enactment  shall  be  limited  in  its  operation  to 
such  appropriation. 

3.  Every  *  *  *  law  making  a  new  appropriation,  or 
continuing  or  reviving  an  appropriation,  shall  distinctly  specify 
the  sum  appropriated,  and  the  object  to  which  it  is  to  be  ap- 
plied; and  it  shall  not  be  sufficient  for  such  law  to  refer  to 
any  other  law  to  fix  such  sum. 

(1846,  VII,  8) 

Section  17.  [Any  law  which  provides  for  the  contracting 
of  debts  by  or  on  behalf  of  the  state,  except  those  set  forth 
in  sections  36  and  37  of  this  article  shall  bej  for  some  single 
work  or  object,  to  be  distinctly  specified  therein;  and  such 
law  shall  impose  and  provide  "for  the  collection  of  a  direct 
annual  tax  to  pay,  and  sufficient  to  pay,  the  interest  on  such 
debt  as  it  falls  due,  and  also  to  pay  and  discharge  the  prin- 
cipal of  such  debt  within  fifty  years  from  the  time  of  the 
contracting  thereof. 

(1846,  VII,  12) 

2.  No  such  law  shall  take  effect  until  it  shall,  at  a  general 
election,  have  been  submitted  to  the  people,  and  have  received 
a  majority  of  all  the  votes  cast  for  and  against  it  at  such 
election. 

(1846,  VII,  12) 

3.  On  the  final  passage  of  such  bill  in  either  house  of  the 
legislature,  the  question  shall  be  taken  by  ayes  and  nays  to  be 
duly  entered  on  the  journals  thereof,  and  shall  be:  "Shall 
this  bill  pass,  and  ought  the  same  to  receive  the  sanction  of 
the  people?" 

(1846,  VII.  12) 

4.  The  legislature  may  at  any  time,  after  the  approval 
of  such  law  by  the  people,  if  no  debt'  shall  have  been  con- 
tracted in  pursuance  thereof,  repeal  the  same;  and  may  at 
any  time,  by  law,  forbid  the  contracting  of  any  further  debt 

213 


APPENDIX 


or  liability  under  such  law;  but  the  tax  imposed  by  such  act, 
in  proportion  to  the  debt  and  liability  wliich  may  have  been 
contracted,  in  pursuance  of  such  law,  shall  remain  in  force 
and  irrepealable,  and  be  annually  collected,  until  the  proceeds 
thereof  shall  have  made  the  provision  hereinbefore  specified 
to  pay  and  discharge  the  interest  and  principal  of  such  debt 
and  liability.  The  money  arising  from  any  loan  or  stock 
creating  such  debt  or  liability  shall  be  applied  to  the  work 
or  object  specified  in  the  act  authorizing  such  debt  or  liability, 
or  for  the  repayment  of  such  debt  or  liability,  and  for  no 
other  purpose  whatever.  No  such  law  shall  be  submitted  to 
be  voted  on,  within  three  months  after  its  passage,  or  at  any 
general  election  when  any  other  law,  or  any  bill,  shall  be  sub- 
mitted to  be  voted  for  or  against. 
(1846,  VII,  12) 

Taxation  Section  18.     Every  law  which  imposes,  continues  or  revives 

Art.  Ill,  Sec.  24  ^  tax  shall  distinctly  state,  the  tax  and  the  object  to  which  it 

is  to  be  applied,  and  it  shall  not  be  sufficient  to  refer  to  any 

other  law  to  fix  such  tax  or  object. 
(1846,  III,  20;  added  1874) 

Art.  Ill,  Sec.  25  2.     On  the  final  passage  in  either  house  of  the  legislature 

of  any  act  which  imposes,  continues  or  revives  a  tax,  or 
creates  a  debt  or  charge,  or  makes,  continues  or  revives  any 
appropriation  of  public  or  trust  money  or  property,  or  releases, 
discharges  or  commutes  any  claim  or  demand  of  the  state, 
the  question  shall  be  taken  by  yeas  and  nays,  which  shall  be 
duly  entered  upon  the  journals,  and  three-fifths  of  all  the 
members  elected  to  either  house  shall,  in  all  such  cases,  be 
necessary  to  constitute  a  quorum  therein. 
(1846,  III,  2;  added  1874) 

City  Laws  Section  19.    Laws  relating  to  the  property,  affairs  or  gov- 

Art.  XII,  Sec.  2  ernment  of  cities,  and  the  several  departments  thereof,  are 

divided  into  general  and  special  city  laws;  general  city  laws 
are  those  which  relate  to  all  the  cities  of  one  or  more  classes; 
special  city  laws  are  those  which  relate  to  a  single  city,  or 
to  less  than  all  the  cities  of  a  class.  Special  city  laws  shall 
not  be  passed  except  in  conformity  with  the  provisions  of  this 
section. 

Art.  XII.  Sec.  2  2.     After  any  bill  for  a  special  city  law,  relating  to  a  city, 

has  been  passed  by  both  branches  of  the  legislature,  the  house 
in  which  it  originated  shall  immediately  transmit  a  certified 
copy  thereof  to  the  mayor  of  such  city,  and  within  fifteen 
days  thereafter  the  mayor  shall  return  such  bill  to  the  house 
from  which  it  was  sent,  or  if  the  session  of  the  legislature 
at  which  such  bill  was  passed  has  terminated,  to  the  governor, 
with  the  mayor's  certificate  thereon,  stating  whether  the  city 
has  or  has  not  accepted  the  same. 

Art.  XII,  Sec.  2  3.     In   every   city   of   the   first   class,    the   mayor,    and   in 

every  other  city,  the  mayor  and  the  legislative  body  thereof, 
concurrently  shall  act  for  such  city  as  to  such  bill;  but  the 
legislature  may  provide  for  the  concurrence  of  the  legislative 
body  in  cities  of  the  first  class.  The  legislature  shall  provide 
for  a  public  notice  and  opportunity  for  a  public  hearing  con- 
cerning any  such  bill  in  every  city  to  which  it  relates,  before 
action  thereon.  Such  a  bill,  if  it  relates  to  more  than  one 
city,  shall  be  transmitted  to  the  mayor  of  each  city  to  which 
it  relates,  and  shall  not  be  deemed  accepted  unless  accepted 
as  herein  provided,  by  every  sucIt  city.  Whefiever  any  such 
bill  is  accepted  as  herein  provided,  it  shall  be  subject,  as  are 
other  bills,  to  the  action  of  the  governor.    Whenever,  during 

214 


APPENDIX   I.— CONSTITUTION    OF    1894,    REARRANGED    AND    ANNOTATED 

the  session  at  which  it  was  passed,  any  such  bill  is  returned 
without  the  acceptance  of  the  city  or  cities  to  which  it  relates, 
or  within  such  fifteen  days  not  returned,  it  may  nevertheless 
again  be  passed  by  both  branches  of  the  legislature,  and  it 
shall  then  be  subject  as  are  other  bills,  to  the  action  of  the 
governor.  In  every  special  city  law  which  has  been  accepted 
by  the  city  or  cities  to  which  it  relates,  the  title  shall  be  fol- 
lowed by  the  words  "  accepted  by  the  city,"  or  "  cities,"  as 
the  case  may  be;  in  every  such  law  which  is  passed  without 
such  acceptance,  by  the  words  "  passed  without  the  acceptance 
of  the  city,"  or  "  cities,"  as  the  case  may  be. 


Legislative   Power 
Art.  Ill,  Sec.  1 


Duties  Pertaining  to 


Suffrage 

Art.   II,   Sec.   4 


Art.  II,  Sec.  2 


Art.   Ill,   Sec.  4 


Apportionment 
Art.  Ill,  Sec.  5 


Judicial  Department 
Art.  VI,   Sec.   2 


Administrative 

Organization 

Art.   VIII,   Sec.    11 

Art.   XII,   Sec.    1 


Choice  of  Officers 
Art.   X,   Sec.  4 


Filling  Vacancies 

in  Office 

Art.   X.  Sec.   5 


Powers  and  Duties 

Section  20.  The  legislative  power  of  this  state  shall  be 
vested  in  the  senate  and  assembly. 

(1777,  II;  1821,  I,  1;  1846,  III,  1) 

Section  21.  [It  shall  be  the  duty  of  the  legislature  to 
make  laws  the  purpose  of  which  shall  be:] 

(1)  Ascertaining  by  proper  proofs  the  citizens  who  shall 
be  entitled  to  the  right  of  suffrage  hereby  established  and  for 
the  registration  of  voters. 

(1821,  II,  3;  1846,  II,  4) 

(2)  Excluding  from  the  right  of  suffrage  all  persons  con- 
victed of  bribery  or  of  any  infamous  crime. 

(1821,  II,  2;  1846,  II,  2) 

(3)  [Altering  the  senate  districts]  at  the  first _  regular 
session  after  the  return  of  every  [census]  enumeration  [so] 
that  each  senate  district  shall  contain  as  nearly  as  may  be  an 
equal  number  of  inhabitants.^  excluding  aliens,  and  [shall]  be 
in  as  compact  form  as  practicable. 

(1777.  XII;  1821,  I,  6;  1846.  Ill,  4;  see  amendment 
of  1801) 

(4)  [Reapportioning]  the  members  of  the  assembly 
*  *  *  at  the  first  regular  session  after  the  t-eturn  of  every 
[census]  enumeration,  among  the  several  counties  of  the  state, 
as  nearly  as  may  be  according  to  the  number  of  their  respec- 
tive inhabitants,  excluding  aliens. 

(1777,  V;  1821,  I,  7;  1846,  III,  5) 

(5)  [Dividing]   the  state  into  four  judicial  departments. 

(1846,  VI,  7,  as  amended  1869;  1846,  VI,  6) 

(6)  [Providing  for  a  state  board  of  charities,  a  state 
commission  of  lunacy,  and  a  state  commission  of  prisons]. 

(7)  [Providing]  for  the  organization  of  cities  and  incor- 
porated villages,  and  [restricting]  their  powers  of  taxation, 
assessment,  borrowing  money,  contracting  debt,  and  loaning 
their  credit,  so  as  to  prevent  abuses  in  assessments  and  in 
contracting  debts  by  municipal  corporations. 

(1846,   VIII,  9) 

(8)  [Prescribing]  the  time  of  electing  all  officers  nained 
in  [article  III,  section  2,  paragraph  8]. 

(1846,  X,  2) 

(9)  [Providing]  for  filling  vacancies  in  office. 

(1846,  X,   5) 

215 


APPENDIX 


Art.   V,   Sec.  9 


Art.   X,   Sec.   7 


Local    Ordinances 
and  Administrative 
Regulations 
Art.  Ill,  Sec.  27 


Incorporation 
Art.   Ill,  Sec.   18 


Publicity 

Art.   VI,   Sec.   21 


Art.   VI,   Sec.   21 


Art.   XII,   Sec.   2 


Expenses  of 
Government 
Art.  VII,  Sec.  9 


(10)  [Providing  for  making  appointments  and  promo- 
tions in  the  civil  service  of  the  state,  and  to  all  civil  divisions 
thereof,  including  cities  and  villages,  according  to  merit!  and 
fitness]. 

(11)  [Providing  for  the  removals  set  forth  in  article  III, 
section  10,  paragraph  8]. 

(1846,  X,  7) 

(12)  [Conferring  by  general  laws]  upon  the  boards  of 
supervisors  of  the  several  counties  of  the  state  further  powers 
of  local  legislation  and  administration  as  [it]  may  from  time 
to  time  deem  expedient,  and  in  counties  which  now  have,  or 
may  hereafter  have,  county  auditors  or  other  fiscal  officers, 
authorized  to  audit  bills,  accounts,  charg^es,  claims  or  demands 
against  the  county,  [it]  may  confer  such  powers  upon  said 
auditors,  or  fiscal  officers,  as  [it]  may,  from  time  to  time, 
deem  expedient. 

(1846,  III,  23;  as  amended  1874  and  1909;  see  1846, 
III,    17) 

(13)  [Providing  by  general  laws]  for  the  cases  enumer- 
ated in  [article  IV,  section  28]  and  for  all  other  cases  which 
in  its  judgment  may  be  provided  for  by  general  laws. 

(1846,  III,  18;  added  1874) 

(14)  [Providing]  for  the  speedy  publication  of  all  stat- 
utes. 

(1846,  VI,  22;  1869,  VI,  23) 

(15)  [Regulating]  the  reporting  of  decisions  of  the  courts. 

(1846,  VI,  22;  1869,  VI,  23) 

(16)  [Providing]  for  a  public  notice  and  opportunity  for 
a  hearing  concerning  any  [bills  subinitted  to  the  mayor  or 
council  of  the  city  according  to  the  provisions  of  article  IV, 
section  19.] 

(17)  [Providing]  annually,  by  equitable  taxes  *  *  * 
for  the  expenses  of  the  superintendence  and  repairs  of  the 
canals. 

(See  1846,  VII,  1) 


Art.  XIII,  Sec.  6 


Regulation   of 

Banking 

Art.  VIII,  Sec.  6 


Art.  VIII,  Sec.  4 


Prison    Labor 
Art.   Ill,   Sec.   29 


(18)  [Providing  for  payment  by  the  state  for]  expenses 
which  shall  be  incurred  by  any  county  in  investigating  and 
prosecuting  any  charge  of  bribery  or  attempting  to  bribe  any 
person  holding  office  under  the  laws  of  this  state,  in  any 
county  thereof,  or  of  receiving  bribes  by  any  such  person  in 
said  county,  said  expenses  to  be  a  charge  against  the  state. 

(1846,  XV,  4;  added  1874) 

(19)  [Providing]  for  the  registry  of  all  bills  or  notes 
issued  or  put  in  circulation  as  money,  and  [requiring]  ample 
security  for  the  redemption  of  the  same  in  specie. 

(1846,  VIII,  6) 

(20)  [Conforming,  by  general  laws]  all  charters  of  sav- 
ings banks,  or  institutions  for  savings,  to  a  uniformity  of 
powers,  rights  and  liabilities. 

(1846,  VIII,  4;  as  amended  1874) 

(21)  [Providing]  for  the  occupation  and  employment_  of 
prisoners  sentenced  to  the  several  state  prisons,  penitentiaries, 
jails  and  reformatories  of  the  state,  and  [that]  no  person  in 
any  such  prison,  penitentiary,  jail  or  reformatory  shall  be  re- 
quired or  allowed  to  work,  while  under  sentence  thereto,  at 

216 


APPENDIX    I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 


any  trade,  industry  or  occupation  wherein  or  whereby  his 
work,  or  the  product  or  profit  of  his  work,  shall  be  farmed 
out,  contracted,  given  or  sold  to  any  person,  firm  or  associa- 
tion, or  corporation  [but]  this  [paragraph]  shall  not  be  con- 
strued to  prevent  the  legislature  from  providing  that  convicts 
may  work  for,  and  that  the  products  of  the  labor  may  be 
disposed  of  to  the  state  or  any  political  division  thereof,  or 
for  or  to  any  public  institution  owned,  managed  and  con- 
trolled by  the  state,  or  any  political  division  thereof. 


Violation    of 

Constitutional 

Provision 

Art.    I,    Sec.    9 

Common    Schools 

Art.    IX,   Sec.    1 


Art.   IX,   Sec.   3 


Art.   XI,   Sec.   3 


Amendment 

Art.    XIV,   Sec.    1 


Art.  VIII,  .Sec.   10 


Art.   VII.    Sec.   4 


(22)  [Preventing]  offenses  against  any  of  the  provisions 
of  [article  IV,  sections  26  and  27.] 

(23)  [Providing]  for  the  maintenance  and  support  of  a 
system  of  free  common  schools,  wherein  all  the  children  of 
this  state  may  be  educated. 

(24)  [Appropriating]  the  sum  of  twenty-five  thousand 
dollars   of   the   revenues   of  the   United   States  deposit   fund 

*  *     *     each  year     *    *     *     to    *    *    *    the  capital  of  the 

*  *     *     common  school  fund. 

(1846,  IX,  1) 

(25)  [Making]  at  each  session  *  *_  *  sufficient  ap- 
propriation for  the  maintenance  [of  the  militia]. 

(26)  [Submitting  to  the  people  for  approval  such  amend- 
ments to  the  constitution  as  are  mentioned  in  article  XII,  sec- 
tion 1.] 

(1821,  VIII,  1;  1846,  XIII,  1) 

(27)  [Prescribing]  the  method  by  which  and  the  terms 
and  conditions  under  which  the  amount  of  any  debt  [of  New 
York  city  to  be  excluded]  in  ascertaining  the  power  of  said 
city  to  become  otherwise  indebted  shall  be  determined. 

(Added  1909) 

(28)  [Reducing  the  direct  tax  to  an  amount  equal  to  the 
accruing  interest  on  the  debt  provided  for  in  article  IV,  sec- 
tion 40,  when  any  sinking  fund  created  under  article  IV,  sec- 
tion 17,  shall  equal  in  amount  the  debt  for  which  it  was  cre- 
ated]. 

(Added  1909) 


Freedom  of  Speech 
and    Press 
Art.   I,   Sec.    8 


Right   to  Assemble 
and   Petition 
Art.   I,   Sec.   9 


Damages  for   Injuries 
Causing   Death 
Art.    I,    Sec.    18 


Suspension    of 
Specie  Payments 
Art.  VIII,  Sec.  5 


Specific  Restraints  on  Legislation 

Section  22.     No  law  shall  be  passed  to  restrain  or  abridge 
the  liberty  of  speech  or  of  the  press. 
(1821,  VII,  8;  1846,  I,  8) 

Section  23.     No  law   shall  be  passed  abridging  the   right 
of  the  people  peaceably  to  assemble  and  to  petition  the  govern- 
ment, or  any  department  thereof. 
(1846,  I,  10) 

Section  24.  The  right  of  action  now  existing  to  recover 
damages  for  injuries  resulting  in  death,  shall  never  be  abro- 
gated; and  the  amount  recoverable  shall  not  be  subject  to  any 
statutory  limitations. 

Section  25.    The  legislature  shall  have  no  power  to  pass 
any  law  sanctioning  in  any  manner,  directly  or  indirectly,  the 
suspension  of  specie  payments  by  any  person,  association  or 
corporation,  issuing  bank  notes  of  any  description. 
(1846,  VIII,  5) 

217 


APPENDIX 


Divorce 

Art.    I,    Sec.    9 


Gambling 

Art.    I,    Sec.    9 


Private  and  Local 

Bills 

Art.   Ill,   Sec.    IS 


Section   26.     [No]    divorce    [shall    be]    granted    otherwise 
than  by  due  judicial  proceedings. 
(1846,  I,  10) 

Section  27.     [Xo]  lottery  [nor]  sale  of  lottery  tickets,  pool- 
selling,  book-making,  or  any  other  kind  of  gambling  hereafter 
[shall]  be  authorized  or  allowed  within  this  state. 
(1821,  VII,  11;  1846,  I,  10) 

Section  28.  The  legislature  shall  not  pass  a  private  or 
local  bill  in  any  of  the  following  cases: 

1.  Changing  the  names  of  persons. 

2.  Laying  out,  opening,  altering,  working  or  discontinuing 
roads,  highways  or  alleys,  or  for  draining  swamp  or  other 
low  lands. 


3. 

4. 
cases. 


6. 
visors, 


Locating  or  changing  county  seats. 
Providing   for   changes   of  venue 


civil   or   criminal 


Incorporating  villages. 

Providing  for  election  of  members  of  boards  of  super- 


7.  Selecting,  drawing,  summoning  or  impaneling  grand  or 
petit  jurors. 

8.  Regulating  the  rate  of  interest  on  money. 

9.  The  opening  and  conducting  of  elections  or  designating 
places  of  voting. 

10.  Creating,  increasing  or  decreasing  fees,  percentages 
or  allowances  of  public  officers,  during  the  term  for  which 
said  officers  are  elected  or  appointed. 

11.  Granting  to  any  corporation,  association  or  individual 
the  right  to  lay  down  railroad  tracks. 


Corporations 
Art.  VIII,  Sec.   1 


12.  Granting  to  any  private  corporation,  association  or 
individual  any  exclusive  privilege,  immunity  or  franchise 
whatever. 

(As  amended  1901) 

13.  Granting  to  any  person,  association,  firm  or  corpora- 
tion, an  exemption  from  taxation  on  real  or  personal  prop- 
erty. 

14.  Providing  for  building  bridges,  and  chartering  com- 
panies for  such  purposes,  except  on  the  Hudson  river  below 
Waterford,  and  on  the  East  river,  or  over  the  waters  form- 
ing a  part  of  the  boundaries  of  the  state. 

(1846),  III,  18;  added  1874) 

Section  29.  Corporations  may  be  formed  under  general 
laws;  but  shall  not  be  created  by  special  act,  except  for 
municipal  purposes,  and  in  cases  where,  in  the  judgment  of 
the  legislature,  the  objects  of  the  corporation  cannot  be 
attained  under  general  laws. 
(1846,  VIII,  1) 

2.     All  general  laws  and  special  acts  parsed  pursuant  to 
this  section  may  be  altered  from  time  to  time  or  repealed. 
(1846,  VIII,  1) 

218 


APPENDIX    I.— CONSTITUTION    OF    189 J,,    REARRANGED    AND    ANNOTATED 


Banks 
Art.  VIII,  Sec.  4 


Drainage    of 
Agricultural  Lands 
Art.   I,   Sec.   7 


Street  Railroads 
Art.   Ill,   Sec.   18 


Private   Claims 
Art.   Ill,   Sec.    19 


Claims  Barred   by 
Statute   of  Limitatl 
Art.   VII.   Sec.  6 


Section  30.     The  legislature  shall  have  no  power  to  pass 
any  act  granting  any  special  charter   for  banking  purposes, 
but   corporations    or    associations    may   be    formed    for   such 
purposes  under  general  laws. 
(1846,  VIII,  1) 

Section  31.  General  laws  may  be  passed  permitting  the 
owners  or  occupants  of  agricultural  lands  to  construct  and 
maintain  for  the  drainage  thereof,  necessary  drains,  ditches 
and  dykes  upon  the  lands  of  others,  under  proper  restrictions 
and  with  just  compensation,  but  no  special  laws  shall  be 
enacted  for  such  purposes. 

Section  32.  No  law  shall  authorize  the  construction  or 
operation  of  a  street  railroad  except  upon  the  condition  that 
the  consent  of  the  owners  of  one-half  in  value  of  the  prop- 
erty bounded  on,  and  the  consent  also  of  the  local  authorities 
having  the  control  of,  that  portion  of  a  street  or  highway 
upon  which  it  is  proposed  to  construct  or  operate  such  rail- 
road be  first  obtained,  or  in  case  the  consent  of  such  property 
owners  cannot  be  obtained,  the  appellate  division  of  the 
supreme  court  in  the  department  in  which  it  is  proposed  to 
be  constructed,  may,  upon  application,  appoint  three  commis- 
sioners who  shall  determine,  after  a  hearing  of  all  parties 
interested,  whether  such  railroad  ought  to  be  constructed  or 
operated,  and  their  determination,  confirmed  by  the  court, 
may  be  taken  in  lieu  of  the  consent  of  the  property  owners. 
(1846,  III,  18;  added  1874) 

Section  33.  The  legislature  shall  neither  audit  nor  allow 
any  private  claim  or  account  against  the  state,  but  may  appro- 
priate money  to  pay  such  claims  as  shall  have  been  audited 
and  allowed  according  to  law. 

(1846,  III,  19;  added  1874) 

Section  34.  Neither  the  legislature,  canal  board,  nor  any 
person  or  persons  acting  in  behalf  of  the  state,  shall  audit, 
allow  or  pay  any  claim  which,  as  between  citizens  of  the 
state,  would  be  barred  by  lapse  of  time. 

(1846,  VII,  14;  as  amended  1874) 


Extra    Compensation 
Art.  Ill,   Sec.  28 


Indebtedness 
Art.    VII,    Sec.   2 


2.  This  provision  shall  not  be  construed  to  repeal  any 
statute  fixing  the  time  within  which  claims  shall  be  presented 
or  allowed,  nor  shall  it  extend  to  any  claim  duly  presented 
within  the  time  allowed  by  law,  and  prosecuted  with  due  dili- 
gence from  the  time  of  such  presentment.  But  if  the  claim- 
ant shall  be  under  legal  disability,  the  claim  may  be  presented 
within  two  years  after  such  disability  is  removed. 
(1846,  VII,  14;  as  amended  1874) 

Section  35.  The  legislature  shall  not  *  *  *  grant  any 
extra  compensation  to  any  public  officer,  servant,  agent  or 
contractor. 

(1846,  III,  24;  added  1874) 

Section  36.  The  state  may,  to  meet  casual  deficits  or 
failures  in  revenues,  or  for  expenses  not  provided  for,  con- 
tract debts;  but  such  debts,  direct  or  contingent,  singly  or 
in  the  aggregate,  shall  not  at  any  time  exceed  one  million  of 
dollars ;  and  the  money  arising  from  the  loans  creating  such 
debts  shall  be  applied  to  the  purposes  for  which  they  were 
obtained,  or  to  repay  the  debts  so  contracted,  and  to  no  other 
purpose  whatever. 

(1846,  VII.  10) 

219 


APPENDIX 


Debts  to  Repel 

Invasion 

Art.    VII.    Sec.    3 


Section  37.  In  addition  to  the  above  limited  power  to 
contract  debts,  the  state  may  contract  debts  to  repel  invasion, 
suppress  insurrection,  or  defend  the  state  in  war;  but  the 
money  arising  from  the  contracting  of  such  debts  shall  be  ap- 
plied to  the  purpose  for  which  it  was  raised,  or  to  repay  such 
debts,  and  to  no  other  purpose  whatever. 
(1846,   VII,   11) 


Payment  of  Money 
Art.  Ill,   Sec.  21 


Section  3S.  No  money  shall  ever  be  paid  out  of  the 
treasury  of  this  state,  or  any  of  its  funds,  or  any  of  the 
funds  under  its  management,  except  in  pursuance  of  an 
appropriation  by  law ;  nor  unless  such  payment  be  made 
within  two  years  next  after  the  passage  of  such  appropriation 
act. 

(1846,   VII,   8) 


Aid   to  Private 
Undertakings 
Art.   VIII,  Sec.  9 


Art.  VII,  Sec.    1 


Creating  Indebtedness 
Art.    VII,    Sec.    4 


Pavment   of  State 

Debt 

Art.  VII,  Sec.  11 


Section  39.  Neither  the  credit  nor  the  money  of  the 
state  shall  be  given  or  loaned  to  or  in  aid  of  any  association, 
corporation  or  private  undertaking.  This  section  shall  not 
*  *  *  apply  to  any  fund  or  property  now  held,  or  which 
may  hereafter,  be  held,  by  the  state  for  educational  purposes. 
(1846,  VIII,  10;  added  1874) 

2.  The  credit  of  the  state  shall  not  in  any  manner  be 
given  or  loaned  to  or  in  aid  of  any  individual,  association  or 
corporation. 

(1846,  VII,  9) 

Section  40.  The  legislature  may  provide  for  the  issue  of 
bonds  of  the  state  to  run  for  a  period  not  exceeding  fifty 
years  in  lieu  of  the  bonds  heretofore  authorized  but  not 
issued  and  shall  impose  and  provide  for  the  collection  of  a 
direct  annual  tax  for  the  payment  of  the  same  as  hereinbefore 
required.  When  any  sinking  fund  created  under  [article  IV, 
section  17],  shall  equal  in  amount  the  debt  for  which  it  was 
created,  no  further  direct  tax  shall  be  levied  on  account  of 
said  sinking  fund  and  the  legislature  shall  reduce  the  tax  to 
an  amount  equal  to  the  accruing  interest  on  such  debt.  The 
legislature  may  from  time  to  time  alter  the  rate  of  interest 
to  be  paid  upon  any  state  debt  which  has  been  or  may  be 
authorized  pursuant  to  the  provisions  of  [article  IV,  section 
17]  or  upon  any  part  of  such  debt,  provided,  however,  that 
the  rate  of  interest  shall  not  be  altered  upon  any  part  of  such 
debt  or  upon  any  bond  or  other  evidence  thereof,  which  has 
been,  or  shall  be  created  or  issued  before  such  alteration.  In 
case  the  legislature  increase  the  rate  of  interest  upon  any  such 
debt,  or  part  thereof,  it  shall  impose  and  provide  for  the 
collection  of  a  direct  annual  tax  to  pay  and  sufficient  to  pay 
the  increased  or  altered  interest  on  such  debt  as  it  falls  due 
and  also  to  pay  and  discharge  the  principal  of  such  debt 
within  fifty  j-^ears  from  the  time  of  the  contracting  thereof, 
and  shall  appropriate  annually  to  the  sinking  fund  moneys  in 
amount  sufficient  to  pay  such  interest  and  pay  and  discharge 
the  principal  of  such  debt  when  it  shall  become  due  and 
payable. 

(Added  to  1894,  VII,  4.  in  1905) 

Section  41.  The  legislature  may  appropriate  out  of  any 
funds  in  the  treasury,  moneys  to  pay  the  accruing  interest 
and  principal  of  any  debt  heretofore  or  hereafter  created,  or 
any  part  thereof  and  may  set  apart  in  each  fiscal  year  moneys 
in  the  state  treasury  as  a  sinking  fund  to  pay  the  interest  as 
it  falls  due  and  to  pay  and  discharge  the  principal  of  any  debt 
heretofore  or  hereafter  created  under  section  [17]  of  article 
[IV]  of  the  constitution  until  the  same  be  wholly  paid,  and 

220 


APPENDIX    I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 

the  principal  and  income  of  such  sinking  fund  shall  be  applied 
to  the  purpose  for  which  said  sinking  fund  is  created  and 
to  no  other  purpose  whatever;  and,  in  the  event  such  moneys 
so  set  apart  in  any  fiscal  year  be  suificient  to  provide  such 
sinking  fund,  a  direct  annual  tax  for  such  year  need  not  be 
imposed  and  collected,  as  required  by  the  provisions  of  said 
section  [17]  of  article  [IV],  or  of  any  law  enacted  in  pursu- 
ance thereof. 

(1894,  VII,  11;  added  1905) 


Highways 
Art.    VII,    Sec. 


Private  Roads 
Art.  I,  Sec.  7 


Special  Session 
Art.  IV,  Sec.  4 


IVorkmen's^ 
Compensation 
Art.    I,    Sec.    19 


Section  42.  A  debt  or  debts  of  the  state  may  be  authorized 
by  law  for  the  improvement  of  highways.  Such  highways 
shall  be  determined  under  general  laws,  which  shall  also 
provide  for  the  equitable  apportionment  thereof  among  the 
counties.  The  aggregate  of  the  debts  authorized  by  this 
section  shall  not  at  any  one  time  exceed  the  sum  of  fifty 
millions  of  dollars.  The  payment  of  the  annual  interest  on 
such  debt  and  the  creation  of  a  sinking  fund  of  at  least  two 
per  centum  per  annum  to  discharge  the  principal  at  maturity 
shall  be  provided  by  general  laws  whose  force  and  effect 
shall  not  be  diminished  during  the  existence  of  any  debt 
created  thereunder.  The  legislature  may  by  general  laws 
require  the  county  or  town  or  both  to  pay  to  the  sinking 
fund  the  proportionate  part  of  the  cost  of  any  such  highway 
within  the  boundaries  of  such  county  or  town  and  the  pro- 
portionate part  of  the  interest  thereon,  but  no  county  shall  at 
any  time  for  any  highway  be  required  to  pay  more  than 
thirty-five  hundredths  of  the  cost  of  such  highway,  and  no 
town  more  than  fifteen  hundredths.  None  of  the  provisions 
of  [sections  17  and  40]  of  this  article  shall  apply  to  debts  for 
the  improvement  of  highways  hereby  authorized. 
(1894,  VII,  12;  added  1905) 

Section  43.  Private  roads  may  be  opened  in  the  manner 
to  be  prescribed  by  law,  but  in  every  case  the  necessity  of 
the  road  and  the  amount  of  all  damage  to  be  sustained  by  the 
opening  thereof  shall  be  first  determined  by  a  jury  of  free- 
holders, and  such  amount,  together  with  the  expenses  of  the 
proceedings,  shall  be  paid  by  the  person  to  be  benefited. 
(1846,  I,  7) 

Section  44.  At  extraordinary  sessions  no  subject  shall 
be  acted  upon,  except  such  as  the  Governor  may  recommend 
for  consideration. 

Section  45-  Nothing  contained  in  this  constitution  shall 
be  construed  to  limit  the  power  of  the  legislature  to  enact 
laws  for  the  protection  of  the  lives,  health,  or  safety  of 
employees ;  or  for  the  payment,  either  by  employers,  or  by 
etnployers  and  employees  or  otherwise,  either  directly  or 
through  a  state  or  other  system  of  insurance  or  otherwise, 
of  compensation  of  injuries  without  regard  to  fault  as  a 
cause  thereof,  except  where  the  injury  is  occasioned  by  the 
willful  intention  of  the  injured  employee  to  bring  about  the 
injury  or  death  of  himself  or  of  another,  or  where  the  injury 
results  solely  from  the  intoxication  of  the  injured  employee 
while  on  duty;  or  for  the  adjustment,  determination  and 
settlement,  with  or  without  trial  by  jury,  of  issues  which  may 
arise  under  such  legislation  ;  or  to  provide  that  the  right  of 
such  compensation,  and  the  remedy  therefor  shall  be  exclusive 
of  all  other  rights  and  remedies  for  injuries  to  employees 
or  for  death  resulting  from  such  injuries;  or  to  provide 
that  the  amount  of  such  compensation  for  death  shall  not 
exceed  a  fixed  or  determinable  sum ;  provided  that  all  moneys 
paid  by  an   employer  to  his   employees   or  their   legal   repre- 

221 


APPENDIX 


sentatives,   by  reason  of   the  enactment  of  any  of  the  laws 
herein  authorized,  shall  be  held  to  be  a  proper  charge  in  the 
cost  of  operating  the  business  of  the  employer. 
(Added   1912) 


Charitable 

Institutions 

Art.    VIII,   Sec.    14 

.^rt.    VIII,    Sec.   9 


Section  46.     Nothing  in   this   Constitution   contained   shall 
prevent  the  legislature   from   making  such   provision    for  the 
education  and  support  of  the  blind,  the  deaf  and  dumb,  and 
juvenile   delinquents,   as   to   it   mav   seem   proper. 
(1846,  VIII,  10) 


Public  Service 
Art.   XII,    Sec.    1 


Section  47.  The  legislature  may  regulate  and  fix  the 
wages  or  salaries,  the  hours  of  work  or  labor,  and  make  pro- 
vision for  the  protection,  welfare  and  safety  of  persons 
employed  by  the  state  or  by  any  county,  city,  town,  village 
or  other  civil  division  of  the  state,  or  by  any  contractor 
or  sub-contractor  performing  work,  labor  or  services  for  the 
state,  or  for  any  county,  city,  town,  village  or  other  civil 
division  thereof. 

(.\dded  1905) 


Article  V 


Head  of 
Administration 
Art.   IV,    Sec. 


THE    EXECUTIVE 

Organization 

Section  1.  [The  head  of  the  administration  both  of  the 
military  and  of  the  civil  government  of  the  state  shall  be 
the  governor;  there  shall  also  be  a  lieutenant-governor,  who 
shall  take  the  place  of  the  governor  whenever  he  shall  be 
incapacitated,  and  who  shall  perform  such  other  duties  as 
are  hereinafter  provided]. 


Governor 
Executive  Power 
Art.    IV,   Sec.    1 


General   Biisines 
Art.  IV,   Sec.  4 


Pozvers  and  Duties  of  the  Chief  Executive 

Section  2.     The    [chief]    executive   power    [both    civil   and 
militar\]  sliall  lie  vested  in  a  governor. 

(1777,  XVII;   1821,  III,  1;  1846,  IV,  1) 

2.     He  shall  transact  all  necessary  business  with  the  offi- 
cers  of  government,   civil  and  military. 

(1777,  XIX;  1821.  Ill,  4;  1846.  IV,  4) 


Convenes    Legislatui 
Art    IV.    Sec.    4 


Pardons,  Reprieves 
Art.   IV,   Sec.   5 


Section  S.     He   sliall   have   power   to   convene   the   legisla- 
ture, or  the  senate  only,  on  extraordinary  occasions. 
(1777,  XVIII;   1821,  III,  4;   1846,  IV,  4) 

Section  4.  The  governor  shall  have  the  power  to  grant 
reprieves,  commutations  and  pardons  after  convictions,  for 
all  offenses  except  treason  and  cases  of  impeachment,  upon 
such  conditions  and  with  such  restrictions  and  limitations, 
as  he  may  think  proper,  subject  to  such  regulations  as  may 
be  provided  by  law  relative  to  the  manner  of  applying  for 
pardons. 

(1777,  XVIII;   1821,  III,  5;   1846,  IV,  5) 

2.  Upon  conviction  for  treason  he  shall  have  power  to 
suspend  the  execution  of  the  sentence,  until  the  case  shall 
be  reported  to  the  legislature  at  its  next  meeting,  when  the 
legislature  shall  either  pardon,  or  commute  the_-sentence,  or 
grant  a  further  reprieve. 

(1777,  XVIII;  1821,  III,  5;  1846,  IV,  5) 

222 


APPENDIX    I.— CONSTITUTION    OF    1S9J,.    REARRANGED    AND    ANNOTATED 


Execute  Laws 
Art.    IV,    Sec. 


Reports  to 
Legislature 
Art   IV,    Sec.    4 


Section  5.  He  shall  expedite  all  such  measures  as  may 
be  resolved  upon  by  the  legislature,  and  shall  take  care  that 
the  laws  are   faithfully   executed. 

(1777,  XIX;  1821,  III,  4;   1846,  IV,  4) 

Section  6.  He  shall  communicate  by  message  to  the  legis- 
lature at  every  session  the  condition  of  the  state. 

(1821,  III,  4;  1846,  IV,  4;  see  1777,  XIX) 


Reports  on  Pard 

etc. 

Art.    IV,   Sec.   5 


2.  [He  shall]  annually  communicate  to  the  legislature 
each  case  of  reprieve,  commutation  or  pardon  granted,  stat- 
ing the  name  of  the  convict,  the  crime  for  which  he  was 
convicted,  the  sentence  and  its  date,  and  the  date  of  the 
commutation,    pardon    or    reprieve. 

(1846,  IV,  5;  see  1777,  XVIII;  1821,  III,  5) 


Recommend 
Legislation 
Art.   IV,   Sec. 


3.     [He  shall]  recommend  such  matters  to  [the  legislature] 
IS  he  shall  judge  expedient. 

(1777,  XIX;  1821,  III,  4;  1846,  IV,  4) 


Lieut. -Governor 
Art.    IV,   Sec.    6 


Section  7.     [When   the  lieutenant  governor   shall  become 
governor  as  provided  in  Article  III,  section  6  all]  the  powers 
and  duties  of  the  office  shall  devolve  upon   [him]. 
(1821,  HI,  6;   1846,  IV,  6;  see  1777,  XX) 


Article  VI 

FINANCIAL    AND    OTHER    PROPRIETARY    DEPARTMENTS, 
BOARDS    AND    OFFICERS 

Section  1.  [P'or  the  purpose  of  caring  for  the  properties, 
funds  and  records  and  performing  such  proprietary  functions 
as  they  may  be  charged  with  by  law,  the  following  offices  and 
boards  are  created  :  secretary  of  state,  treasurer,  commissioner 
of  the  canal  fund,  the  commissioners  of  the  land  office;  and 
such  other  offices  or  boards  may  be  created  for  t'his  purpose 
as  the  legislature  may  deem  expedient]. 


Organisation 

Section  2.  [The  state  treasurer  siiall  keep  the  moneys 
belonging  to  the  state  and  perform  such  other  fimctions  as 
may  be  prescribed  by  law]. 


State  Boards 
Commissioners    of 
Canal   Fund 
Art.   V,   Sec.    5 


Section  3.  The  lieutenant-governor,  secretary  of  state, 
comptroller  and  attorney-general  shall  be  the  commissioners 
of  the  canal   fund. 

(1846,  V,  5) 


Canal  Board 
Art.    V,    Sec. 


Section  4.     The  canal  board  shall  consist  of  the  commis- 
sioners of  the  canal   fund,  the  state  engineer  and  surveyor, 
and  tlie  su|)erintendent  of  public  works. 
(1846,   V,   5) 


Commissioners   of  the 
Land  office 
Art.    V,    Sec.    5 


Section  5.     The  lieutenant-governor,  speaker  of  the  assem- 
l)ly,    secretary    of     state,     comptroller,     treasurer,    attorney- 
general    and    state    engineer   and    surveyor    shall   be   cominis- 
sioners  of  the  land  office. 
(1846.  V,  5) 

223 


APPENDIX 


Secretary  of  State 
Taking   Census 
Art.  Ill,   Sec.  4 


Art.  VII,  Sec.  6 


Art.  IX,  Sec.  4 


Disposition   of  State 
Property 
Forest   Reserves 
Art.    VII,    Sec.    7 


Pozvcrs,  Duties  and  Limitations 

Section  6.  An  enumeration  of  the  inhabitants  of  the  state 
shall  be  taken  under  the  direction  of  the  secretary  of  state, 
during  the  months  of  May  and  June,  in  the  year  one  thousand 
nine  hundred  and  five,  and  in  the  same  months  every  tenth 
year  thereafter. 

(1777,  V;  1821,  I,  6;  1846,  III,  4) 

Section  7.  [Neither  the]  canal  board,  nor  any  person  or 
persons  acting  in  behalf  of  the  state,  shall  audit,  allow,  or  pay 
any  claim  which,  as  between  citizens  of  the  state,  would  be 
barred  by  lapse  of  time.  This  provision  shall  not  be  construed 
to  repeal  any  statute  fixing  the  time  within  which  claims  shall 
be  presented  or  allowed,  nor  shall  it  extend  to  any  claims 
duly  presented  within  the  time  allowed  by  law,  and  prosecuted 
with  due  diligence  from  the  time  of  such  presentment.  But 
if  the  claimant  shall  be, under  legal  disability,  the  claim  may 
be  presented  within  two  years  after  such  disability  is  removed. 
(1846,  VII,   14;   as  amended   1874) 

Section  8.  Neither  the  state  nor  any  subdivision  thereof 
shall  use  its  property  or  credit  or  any  public  money,  or  author- 
ize or  permit  either  to  be  used,  directly  or  indirectly,  in  aid 
or  maintenance  other  than  for  examination  or  inspection,  of 
any  school  or  institution  of  learning  wholly  or  in  part  under 
the  control  or  direction  of  any  religious  denomination,  or  in 
which  any  denominational  tenet  or  doctrine  is  taught. 

Section  9.  The  lands  of  the  state  now  owned  or  here- 
after acquired,  constituting  the  forest  preserve  as  now  fixed 
by  law,  shall  be  forever  kept  as  wild  forest  lands.  They  shall 
not  be  leased,  sold  or  exchanged,  or  be  taken  by  any  corpora- 
tion, public  or  private,  nor  shall  the  timber  thereon  be  sold, 
removed  or  destroyed. 

2.  But  the  legislature  may  by  general  laws  provide  for 
the  use  of  not  exceeding  three  per  centum  of  such  lands  for 
the  construction  and  maintenance  of  reservoirs  for  municipal 
water  supply,  for  the  canals  of  the  state  and  to  regulate  the 
flow  of  streams.  Such  reservoirs  shall  be  constructed,  owned 
and  controlled  by  the  state,  but  such  work  shall  not  be  under- 
taken until  the  boundaries  and  high  flow  lines  thereof  shall 
have  been  accurately  surveyed  and  fixed,  and  after  public 
notice,  hearing  and  determination  that  such  lands  are  required 
for  such  public  use.  The  expense  of  any  such  improvements 
shall  be  apportioned  on  the  public  and  private  propertyand 
municipalities  benefited  to  the  extent  of  the  benefits  received. 
Any  such  reservoir  shall  always  be  operated  by  the  state 
and  the  legislature  shall  provide  for  a  charge  upon  the 
property  and  municipalities  benefited  for  a  reasonable  return 
to  the  state  upon  the  value  of  the  rights  and  property  of  the 
state  used  and  the  services  of  the  state  rendered,  which  shall 
be  fixed  for  terms  of  not  exceeding  ten  years  and  be  readjust- 
able  at  the  end  of  any  term.  Unsanitary  conditions  shall 
not  be  created  or  continued  by  any  such  public  works.  A 
violation  of  anv  of  the  provisions  of  this  section  may  bf 
restrained  at  the  suit  of  the  people,  or,  with  the  consent  ot 
the  supreme  court  in  appellate  division,  on  notice  to  the  attor- 
ney-general at  the  suit  of  any  citizen. 
(Added  1913) 

Section  10.  The  sinking  funds  provided  Jor  the  payment 
of  interest  and  the  extinguishment  of  the  "principal  of  the 
debts  of  the  state  shall  be  separately  kept  and  safely  invested, 
and  neither   of  them  shall  be  appropriated   or  used  in  any 

224 


Sinkii 
Art 


ng  F 
VII. 


APPENDIX    I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 

manner  other  than  for  the  specified  purpose  for  which  it  shall 
have  been  provided. 

(1846,  VII,  13;  as  amended  1874) 

Art.  VII,  Sec.  9  Section  11.     All   contracts    for   work   or  materials   on  any 

canal  shall  be  made  with  the  persons  who  shall  offer  to  do  or 
provide  the  same  at  the  lowest  price,  with  adequate  security 
for  their  performance.  No  extra  compensation  shall  be  made 
to  any  contractor;  but  if,  from  any  unforeseen  cause,  the 
terms  of  any  contract  shall  prove  to  be  unjust  and  oppressive, 
the  canal  board  may,  upon  the  application  of  the  contractor, 
cancel  such  contract. 

Canals  Improvement  Section  12.    The  canals  may  be  improved  in  such  manner 

Art.  VII,  Sec.   10  as  the  legislature  shall  provide  by  law.    A  debt  may  be  author- 

ized for  that  purpose  in  the  mode  [prescribed  by  section  17 
of  article  IVJ,  or  the  cost  of  such  improvement  may  be  de- 
frayed by  the  appropriation  of  funds  from  the  state  treasury, 
or  by  equitable  annual  taxes. 

No  Tolls  2.     No   tolls    shall    hereafter    be    imposed    on    persons    or 

Art.  VII,  Sec.  9  property  transported  on  the  canals. 

(1846,  VII,  3;  as  amended  1874) 

Income  3.     All    funds  that  may   be   derived   from  any  lease,   sale 

Art.  VII,  Sec.  8  or  other  disposition  of  any  canal  shall  be  applied  to  the  im- 

provement, superintendence  or  repair  of  the  reinaining  por- 
tion of  the  canals. 

(1846,  VII,  6;  as  amended  1874) 

Not  to  Be  Sold  4.     The  legislature  shall  not  sell,  lease  or  otherwise  dispose 

Art.  VII,  Sec.  8  ^,|•  j^i^g  gj-je  canal,  the  Oswego  canal,  the  Champlain  canal,  the 

Cayuga  and  Seneca  canals,  or  the  Black  River  canal ;  but  th&y 
shall  remain  the  property  of  the  state  and  under  its  manage- 
ment forever.  The  prohibition  of  lease,  sale  or  other  dispo- 
sition herein  contained,  shall  not  apply  to  the  canal  known  as 
the  Main  and  Hamburg  street  canal,  situated  in  the  city  of 
Buffalo,  and  which  extends  easterly  from  the  westerly  line  of 
Hamburg  street. 

(1846,  VII,  6;  as  amended  1874) 

School  Fund  Section  13.     The  capital  of  the  common  school   fund,  the 

Art.  IX,  Sec.  3  capital  of  the  literature  fund,  and  the  capital  of  the  United 

States  deposit  fund,  shall  be  respectively  preserved  inviolate. 
The  revenue  of  the  said  common  school  fund  shall  be  applied 
to  the  support  of  common  schools ;  the  revenue  of  the  said 
literature  fund  shall  be  applied  to  the  support  of  academies; 
and  the  sum  of  twenty-five  thousand  dollars  of  the  revenue 
of  the  United  States  deposit  fund  shall  each  year  be  appro- 
priated to  and  made  part  of  the  capital  of  the  said  common 
school  fund. 

(1846,  IX,  without  change) 

Article  VII 

CIVIL  DEPARTMENTS  FOR  RENDERING  SERVICE  TO  THE 

PUBLIC 

Organisation 

Section  1.  [For  the  purpose  of  rendering  service  to  the 
public,  other  than  military  protection,  the  following  depart- 
ments are  established  :    department  of  public  works,   depart- 

225 


APPENDIX 


ment  of  canal  construction,  department  of  prisons,  depart- 
ment of  charities,  department  of  education,  and  the  legislature 
may  create  such  other  departments  and  offices  as  it  may  deem 
expedient]. 


Boards  of  Charities, 
Lunacy  and  Prisons 
Art.  VIII,  Sec.  11 


University  Regents 
Art.   IX,   Sec.   2 


Section  2.  [There  shall  be  a  state  board  of  charities,  a 
state  commissioner  in  lunacy,  and  a  state  commission  of 
prisons.]. 

Section  3.  The  corporation  created  in  the  year  one  tliou- 
sand  seven  hundred  and  eighty-four,  under  the  name  of  The 
Regents  of  the  University  of  the  State  of  New  York,  is  hereby 
continued  under  the  name  of  The  University  of  the  State  of 
New  York.  It  shall  be  governed  and  its  corporate  powers, 
which  may  be  increased,  modified  or  diminshed  by  the  legis- 
lature, shall  be  exercised  by  not  less  than  nine  regents. 


Superintendent    of 
Public  Works 
Art.   V,    Sec.   3 


Pozvcrs,  Duties  and.  Limitations 

Section  4.  The  superintendent  of  public  works  *  *  * 
shall  be  charged  with  the  execution  of  all  laws  relating  to 
the  repair  and  navigation  of  the  canals,  and  also  those 
relating  to  the  construction  and  improvement  of  the  canals, 
except  so  far  as  the  execution  of  the  laws  relating  to  such 
construction  or  improvement  shall  l)e  confided  to  the  state 
engineer  and  surveyor;  subject  to  the  control  of  the  legisla- 
ture, he  shall  make  the  rules  and  regulations  for  the  navi- 
gation or  use  of  the  canals  *  *  *  [He]  shall  perform  all 
the  duties  of  the  canal  commissioners,  and  board  of  canal 
commissioners,  as  now  declared  by  law,  until  otherwise  pro- 
vided by  the  legislature. 

(1846,  V.  3,  as  amended,  1876) 


A'ssislants 
Art.   V,   Sec.   3 


Section  5.     [The  duties  of  the  assistant  superintendents] 
shall  be  prescribed  by   [the  superintendent  of  public  works,] 
subject  to  modification  by  the  legislature. 
(1846,  \\  3,  as  amended,  1876) 


Superintendent    of 
State  Prisons 
Art.   V,  Sec.  4 


Section  6.  The  superintendent  [of  state  prisons]  shall 
have  all  the  powers  and  perform  all  the  duties  not  incon- 
sistent herewith,  which  were  formerly  had  and  performed 
by  the  inspectors  of  state  prisons  *  *  *  He  shall  have 
the  superintendence,  management  and  control  of  state  prisons, 
subject  to  such  laws  as  now  exist  or  may  hereafter  be  enacted. 
(1846,  V,  4,  as  amended,  1876) 


Of   Charities 

Art.  VIII,  Sec.   11 


Of  Prisons 


Section  7.  [The  state  board  of  charities]  shall  visit  and 
inspect  all  institutions,  whether  state,  county,  municipal,  in- 
corporated, or  not  incorporated,  which  are  of  a  charitable, 
eleemosynary,  correctional  or  reformatory  character,  except- 
ing only  such  institutions  as  are  herebj-  made  subject  to  the 
visitation  and  inspection  of  either  of  the  commissions  herein- 
after mentioned,  but  including  all  reformatories  except  those 
in  which  adult  males  convicted  of  felony  shall  be  confined. 

Section  8.  [The  state  commission  in  lunacy]  shall  visit 
and  inspect  all  institutions,  either  pul)lic  or  private,  used  for 
the  care  and  treatment  of  the  insane  (not  including  institu- 
tions for  epileptics  or  idiots). 

2.  [The  state  commission  of  prisons]  shall  visit  and 
inspect  all  institutions  used  for  the  detention~of  sane  adults 
charged  with  or  convicted  of  crime,  or  detained  as  witnesses 
or  debtors. 

226 


APPENDIX    I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


Other  Powers  and 

Duties 

Art.    V,    Sec.    6 


Art.  VIII,  Sec.   15 


Offices  Abolished 
Art.    V,    Sec.    8 


Restraint  on 

Administration 

Supervision   and 

Inspection 

Art.  VIII,  Sec.   13 


3.  The  powers  and  duties  of  the  respective  boards,  and 
of  the  several  officers  in  this  article  mentioned,  shall  be  such 
as  now  are  or  hereafter  may  be  prescribed  by  law. 

(1846,  V,  6) 

4.  The  legislature  may  confer  upon  the  commission  and 
upon  the  board  mentioned  in  the  foregoing  sections  any 
additional  powers  that  are  not  inconsistent  with  other  pro- 
visions of  the  Constitution. 

Section  9.  All  offices  for  the  weighing,  gauging,  measur- 
ing, culling  or  inspecting  any  merchandise,  produce,  manufac- 
ture or  commodity  whatever,  are  hereby  abolished  ;  and  no 
such  office  shall  hereafter  be  created  by  law ;  but  nothmg  in 
this  section  contained  shall  abrogate  any  office  created  for 
the  purpose  of  protecting  the  public  health  or  the  interests  of 
the  state  in  its  property,  revenue,  tolls  or  purchases,  or  of 
supplying  the  people  with  correct  standards  of  weights  and 
measures,  or  shall  prevent  the  creation  of  any  office  for  such 
purposes  hereafter. 

(1846,  V,  8) 

Section  10.  Existing  laws  relating  to  institutions  referred 
to  in  the  foregoing  sections  and  to  their  supervision  and 
inspection,  in  so  far  as  such  laws  are  not  inconsistent  with  the 
provisions  of  the  Constitution,  shall  remain  in  force  until 
amended  or  repealed  by  the  legislature.  The  visitation  and 
inspection  herein  provided  for,  shall  not  be  exclusive  of  other 
visitation  and  inspection  now  authorized  by  law. 


Article  VIII 
MILITARY    GOVERNMENT 


Citizens 

Art.    XI,    Sec.    1 


Aliens 

Art.    XI,    Sec.    2 


Commander-in-Chief 
Art.   IV,   Sec.   4 


Art.    IV,    Sec.    6 


Militia 

Divisions 

Art.    XI,   Sec.   3 


Constituency 

Section  1.  All  able-bodied  male  citizens  between  tfee-ages 
of  eighteen  and  forty-five  years,  who  are  residents  of  the 
state,  shall  constitute  the  militia,  subject,  however,  to  such 
exemptions  as  are  now  or  may  be  hereafter  created  by  the 
laws  of  the  United  States,  or  by  the  legislature  of  this  state. 
(See  1777,  XL;  1821,  VII,  5;  1846,  XI,  1) 

2.  The  legislature  may  provide  for  the  enlistment  into 
the  active  force  of  such  other  persons  as  may  make  applica- 
tion to  be  so  enlisted. 

Organisation  and  Pozvers 

Section  2.  The  governor  shall  be  commander-in-chief  of 
the  military  and  naval  forces  of  the  state. 

(1777,  XVni;  1821,  III,  4;  1846,  IV  4) 

2.  When  the  governor  shall,  with  the  consent  of  the  legis- 
lature, be  out  of  the  state,  in  time  of  war,  at  the  head  of  a 
military  force  thereof,  he  shall  continue  commander-in-chief 
of  all  the  military  force  of  the  state. 

(1777,  XX;  1821,  III,  6;  1846,  IV  6) 

Section  3.  The  militia  shall  be  organized  and  divided  into 
such  land  and  naval,  and  active  and  reserve  forces,  as  the 
legislature  may  deem  proper,  provided,  however,  that  there 
shall  be  maintained  at  all  times  a  force  of  not  less  than  ten 
thousand  enlisted  men,  fully  uniformed,  armed,  equipped,  dis- 
ciplined and  readv  for  active  service. 

( 1777,  XL;  1821,  VII,  5;  1846,  XI,  1) 

227 


APPENDIX 


Officexs 

Art.   XI,   Sec.  4 


Art.    XI,    Sec.    S 


C  ommissions 
Art.   XI,   Sec.   6 


Removals 

Art.   XI,   Sec.   6 


Military 
Appropriations 
Art.  XI,  Sec.  3 


Militarv     Debts 
Art.    VII,    Sec.    3 


Section  4.  The  governor  shall  appoint  the  chiefs  of  the 
several  staff  departments,  his  aides-de-camp  and  military  sec- 
retary, all  of  whom  shall  hold  office  during  his  pleasure,  their 
commissions  to  expire  with  the  term  for  which  the  governor 
shall  have  been  elected ;  he  shall  also  nominate,  and  with  the 
consent  of  the  senate  appoint,  all  major-generals. 
(1846,  XI,  3;  see  1821,  IV) 

Section  5.  All  other  commissioned  and  non-commissioned 
officers  shall  be  chosen  or  appointed  in  such  manner  as  the 
legislature  may  deem  most  conducive  to  the  improvement  of 
the  militia,  provided,  however,  that  no  law  shall  be  passed 
changing  the  existing  mode  of  election  and  appointment  un- 
less two-thirds  of  the  metnbers  present  in  each  house  shall 
concur  therein. 

(1821,  IV;  1846,  XI,  4  and  6). 

Section.  6.  The  commissioned  officers  shall  be  commis- 
sioned bv  the  governor  as  commander-in-chief. 

(1777,  XXIV;  1821,  IV,  4;  1846,  XI,  5) 

Section  7.  No  commissioned  officer  shall  be  removed  from 
office  during  the  term  for  which  he  shall  have  been  ap- 
pointed or  elected,  unless  by  the  senate  on  the  recommenda- 
tion of  the  governor,  stating  the  grounds  on  which  such  re- 
moval is  recommended,  or  by  the  sentence  of  a  court-martial, 
or  upon  the  findings  of  an  examining  board  organized  pur- 
suant to  law,  or  for  absence  without  leave  for  a  period  of 
six  months  or  more. 

(1821,  IV,  4;  1846,  XI,  S) 

Section  S.  And  it  shall  be  the  duty  of  the  legislature  at 
each  session  to  make  sufficient  appropriations  for  the  main- 
tenance [of  the  militia]. 

Section  9.  In  addition  to  the  *  *  *  limited  power  to 
contract  debts,  the  state  may  contract  debts  to  repel  invasion, 
suppress  insurrection,  or  defend  the  state  in  war;  but  the 
money  arising  from  the  contracting  of  such  debts  shall  be 
applied  to  the  purpose  for  which  it  was  raised,  or  to  repay 
such  debts,  and  to  no  other  purpose  whatever. 
(1846,  VII,  11) 


Article  IX 
GENERAL    AUDITOR 

[Nothing  is  said  in  the  constitution  regarding  the  organi- 
zation of  the  office  of  comptroller.  The  only  provisions  car- 
rying powers  are  those  which  make  it  his  duty  to  appoint 
clerks  of  prison,  article  III,  section  3,  paragraph  14,  and 
making  him  ex  officio  a  commissioner  of  the  land  office  and 
of  the  canal  fund,  article  VI,  sections  3  and  5.1 


Article  X 
THE    COURTS 

Organisation 

Section  1.  [The  tribunals  hereby  constituted  for  the  trial 
of  cases  are  of  two  general  classes,  viz:  courts  of  law  and 
equity,  and  political   courts.     The  courts   of  law  and   equity 

228 


APPENDIX    I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 

shall  be:  The  court  of  appeals;  the  appellate  division  of  the 
supreme  court;  the  supreme  court;  the  county  courts;  the 
court  of  sessions  in  the  county  of  New  York;  the  surrogates 
courts.  The  political  courts-  shall  be :  the  court  of  impeach- 
ment, an  election  court  for  the  determination  of  election  re- 
turns and  qualifications  of  members  of  the  legislature]. 


Court   of  Appeals 
Composition 
Art.   VI,   Sec.   7 


Quorum 

Art.   VI,   Sec.   7 


Section  2.     The   court  of   appeals   is   continued.     It   shall 
consist  of  the  chief  judge  and  associate  judges  now  in  office 

*  *  *  and  their  successors.  [Justices  of  the  supreme  court 
may  be  designated  by  the  governor  to  serve  as  associate 
judges    as    provided   in   article   III,   section   3,   paragraph  4.] 

(1&46,  VI,  2;  1869,  VI,  2) 

2.     Five  members  of  the  court  shall  form  a  quorum,  and 
the    concurrence    of    four    shall    be    necessary    to    a    decision. 

*  *     *     JsJq   more   than   seven   judges   sliall   sit   in   any   case. 

(1846,  VI,  2,  as  amended   1869) 


Art.   VI,    Sec. 


Clerk's  Office 
Art.    VI,    Sec.    19 


Appellate   Division    of 
the  Supreme  Court 
Composition 
Art.   VI,   Sec.   2 


Departments 
Art.    VI,    Sec.    2 


Departments 
Art.   VI,    Sec.   2 


Quorum 

Art.    VI,    Sec.   2 


Assignment   of   Terms 
and  Justices 
Art.    VI,   Sec.    2 


Transfer   of  Appeals 
Art.   VI,   Sec.   2 


Clerk's  Office 
Art.    VI,   Sec.    19 


3.  The  powers  and  jurisdiction  of  the  court  shall  not  be 
suspended  for  want  of  appointment  or  election  when  the 
number  of  judges  is  sufficient  to  constitute  a  quorum. 

(1846,  VI,  3,  as  amended  1869) 

4.  Tile  clerk  of  the  court  of  appeals  shall  keep  his  office 
at  the  seat  of  government. 

(1846,  VI,  19;  1869,  VI,  20) 

Section  .?.     There    shall    be    an    appellate    division    of    the 
supreme  court,  consisting  of  seven  justices  in  the  first  depart- 
ment, and  of  five  justices  in  each  of  the  other  departments. 
(1846,  VI,  7;  as  amended,   1869;    1846,  VI,  28;   as 
amended  1872) 

2.  The  legislature  shall  divide  the  state  into  four  judicial 
departments  *  *  *.  Once  in  ten  years  the  legislature  may 
alter  the  judicial  departments,  but  without:  increasing  the 
number  thereof. 

(1846,  VI,  9;  1869,  VI,  7) 

3.  The  first  department  shall  consist  of  the  county  of 
New  York ;  the  others  shall  be  bounded,  by  county  lines, 
and  be  compact  and  equal  in  population  as  nearly  as  may  be. 

4.  In  each  department  four  shall  constitute  a  quorum, 
and  the  concurrence  of  three  shall  be  necessary  to  a  decision. 
No  more  than  five  justices  shall  sit  in  any  case. 

5.  The  justices  of  the  appellate  division  in  each  depart- 
ment shall  have  power  to  fix  the  times  and  places  for 
holding  special  terms  therein,  and  to  assign  the  justices 
in  the  departments  to  hold  such  terms ;  or  to  make  rules 
therefor. 

6.  Whenever  the  appellate  division  in  any  department 
shall  be  unable  to  dispose  of  its  business  within  a  reasonable 
time,  a  majority  of  the  presiding  justices  of  the  several 
departments  at  a  meeting  called  by  the  presiding  justice  of 
the  department  in  arrears  may  transfer  any  pending  appeals 
from  such  department  to  any  other  department  for  hearing 
and  determination. 

7.  [The  clerk  of  the  appellate  division]  shall  keep  his 
office  at  a  place  to  be  designated  by  said  justices. 

229 


Supreme  Court 
Composition 
Art.   VI,   Sec.    1 


Increasing   Number 
of    Justices 
Art.    VI,    Sec.    1 


Clerks 

Art.   VI,   Sec.    19 


Courts  of  Sessions 
Art.    VI,   Sec.    14 


Countv    Courts 
Art.   VI,   Sec.    14 


Composition 
Art.    VI,    Sec.    14 


Increasing    Numbe 

of   Judges 

Art".    VI,    Sec.    14 


Surrogates  Courts 
Art.  VI,  Sec.  15 
Composition 


Creating  New   Courts 
Art.   VI,   Sec.    15 


Art.   VI,   Sec.    16 


Section  4.  The  supreme  court  shall  consist  of  the  justices 
now  in  office  and  of  the  judges  transferred  thereto  by  [article 
XIV,  section  8,]  all  of  whom  shall  continue  to  be  justices 
of  the  supreme  court  during  their  respective  terms,  and  of 
twelve  additional  justices  *  *  *  chosen  by  the  electors  of 
the  several  existing  judicial  districts,  three  in  the  first  district, 
three  in  the  second,  and  one  in  each  of  the  other  districts; 
and  of  their  successors. 

(1821,  V,  4;  1846,  VI,  4;  1869,  VI,  6;  1879,  VI,  6) 

2.  The  legislature  may  from  time  to  time  increase  the 
number  of  justices  in  any  judicial  district  except  that  the 
number' of  justices  in  the  first  and  second  district  or  in  any 
of  the  districts  into  which  the  second  district  may  be  divided, 
shall  not  be  increased  to  exceed  one  justice  for  each  eighty 
thousand,  or  fraction  over  forty  thousand  of  the  population 
thereof,  as  shown  by  the  last  state  or  federal  census  or 
enumeration;  and  except  that  the  number  of  justices  in  any 
other  district  shall  not  be  increased,  to  exceed  one  justice 
for  each  sixty  thousand  or  fraction  over  thirty-five  thousand 
of  the  population  thereof  as  shown  by  the  last  state  or  federal 
census  or  enumeration. 

(Added  1905) 

3.  Clerks  of  the  several  counties  shall  be  clerks  of  the 
supreme  court. 

( 1846,  VI,  19 ;  1869,  VI,  20) 

Section  5.  Courts  of  sessions,  except  in  the  county  of 
New  York,  are  abolished  from  and  after  the  last  day  of 
December,  one  thousand  eight  hundred  and  ninety-five. 

Section  6.     The  existing  county  courts  are  continued. 
(1846.  VI,  15;  as  amended  1869) 

2.  [They  shall  consist  respectively  of]  the  judges  thereof 
now  in  office  [and  their  successors]  *  *  *  jj-,  ^hg  county 
of  Kings  there  shall  be  four  county  judges. 

(1846,    VI,    14;    1869,    VI,    15;    1894,    VI,    14;    as 
amended  1913) 

3.  The  number  of  county  judges  in  any  county  may  also 
he  increased,  from  time  to  time,  by  the  legislature,  to  such 
number  that  the  total  number  of  county  judges  in  any  one 
county  shall  not  exceed  one  for  every  two  hundred  thousand, 
or  major  fraction  thereof,  of  the  population  of  such  county. 

(Added  1913) 


Section 


The  existing  surrogates  courts  are  continued. 


2.  [They  shall  consist  respectively  of]  the  surrogates  now 
in  office  [and  of  their  successors]. 

(1846,  VI,  15;  1869,  VI,  15,  16) 

3.  In  counties  having  a  population  exceeding  forty  thou- 
sand, wherein  there  is  no  separate  surrogate,  the  legislature 
may  provide  for  the  election  of  a  separate  officer  to  be 
surrogate. 

Section  S.  The  legislature  may  on  application  of  the 
board  of  supervisors,  provide  for  the  election  of  local 
officers,  not  to  exceed  two  in  any  county,  to  discharge  the 
duties  of  county  judge  and  of  surrogate,  in  cases  of  their 
inability  or  of  a  vacancy,  and  in  such  other  cases  as  may  be 
provided  by  law.  and  to  exercise  such  other  powers  in  special 
cases  as  are  or  may  be  provided  by  law. 
(1846.  VI.  15:  1869,  VI,  16) 

230 


APPENDIX    I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


Number  of  Justices 
of  the  Peace 
Art.    VI,    Sec.    17 


Inferior  Local  Courts 
Art.    VI,   Sec.    18 


Political    Courts 
Court  of  Impeachment 
Art.   VI,   Sec.   13 


Court    of   Appeals 
Art.   VI,   Sec.  9 


Appellate   Division   of 
the  Supreme  Court 
Art.  VI,   Sec.   2 


Supreme  Court 
Art.    VI,    Sec.    1 


Art.    VI,    Sec.    5 


Section  9.  [The]  number  and  classification  [of  justices  of 
the  peace]  may  be  regulated  by  law. 

(1846,  VI,  17;  1869,  VI,  18;  see  1821,  IV,  7) 

Section  10.  Inferior  local  courts  of  civil  and  criminal 
jurisdiction  may  be  established  by  the  legislature  but  no  in- 
ferior local  court  hereafter  created  shall  be  a  court  of  record. 

(1846,  VI,  18;  as  amended  1869) 
Section  11.  The  court  for  the  trial  of  impeachments  shall 
be  composed  of  the  president  of  the  senate,  the  senators  or 
the  major  part  of  them,  and  the  judges  of  the  court  of 
appeals,  or  the  major  part  of  them.  On  the  trial  of  an 
impeachment  against  the  governor  or  lieutenant  governor, 
the  lieutenant  governor  shall  not  act  as  a  member  of  the 
court  *  *  *  No  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present. 
(1777,  XXXII;  1821,  V,  1;  1846,  VI,  1) 

Section  12.     [Each  house  shall]  be  the  judge  of  the  elec- 
tions, returns  and  qualifications  of  its  own  members. 
(1777,  IX,  XII;  1821,  I,  3;  1846,  III,  10) 

Pozvers  and  Duties  of  the  Judiciary 

Section  13.  After  the  last  day  of  December,  one  thousand 
eight  hundred  and  ninety-five,  the  jurisdiction  of  the  court 
of  appeals,  except  where  the  j^idgment  is  of  death,  shall  be 
limited  to  the  review  of  questions  of  law.  No  unanimous 
decision  of  the  appellate  division  of  the  supreme  court  that 
there  is  evidence  supporting  or  tending  to  sustain  a  finding 
of  fact  or  a  verdict  not  directed  by  the  court,  shall  be  re- 
viewed by  the  court  of  appeals.  Except  where  the  judgment 
is  of  death,  appeals  may  be  taken,  as  of  right,  to  said  court 
only  from  judgments  or  orders  entered  upon  decisions  of  the 
appellate  division  of  the  supreme  court,  finally  determining 
actions  or  special  proceedings,  and  from  orders  granting  new 
trial  on  exceptions,  where  the  appellants  stipulate  that  upon 
affirmance  judgment  absolute  shall  be  rendered  against  them. 
The  appellate  division  in  any  department  may,  however,  allow 
an  appeal  upon  any  question  of  law  which,  in  its  opinion, 
ought  to  be  reviewed  by  the  court  of  appeals. 

2.  The  legislature  may  further  restrict  the  jurisdiction  of 
the  court  of  appeals  and  the  right  of  appeal  thereto,  but  the 
right  to  appeal  shall  not  depend  upon  the  amount  involved. 

Section  14.  From  and  after  the  last  day  of  December,  one 
thousand  eight  hundred  and  ninety-five,  the  appellate  division 
shall  have  the  jurisdiction  now  exercised  by  the  supreme 
court  at  its  general  terms,  and  by  the  general  terms  of  the 
court  of  common  pleas  for  the  city  and  county  of  New  York, 
the  superior  court  of  the  city  of  New  York,  the  superior  court 
of  Buffalo  and  the  city  court  of  Brooklyn,  and  such  additional  ' 
jurisdiction  as  may  be  conferred  by  the  legislature. 

Section  15.  The  supreme  court  [shall  have]  general  juris- 
diction in  law  and  equity,  subject  to  such  appellate  jurisdiction 
of  the  court  of  appeals  as  now  is  or  may  be  prescribed  by 
law  not  inconsistent  with  this  article. 

(1846,  VI,  6,  as  amended  1869;  see  1846,  VI,  3) 

2.  The  jurisdiction  now  exercised  by  the  [superior  court 
of  the  city  of  New  York,  the  court  of  common  pleas  for  the 
city  and  county  of  New  York,  the  superior  court  of  Buffalo, 
and  the  city  court  of  Brooklyn]    hereby  abolished,   shall   be 

231 


APPENDIX 


Art.  VI,  Sec.  6 


Art    VI,    Sec.    15 


Clerks 

Art.   VI,   Sec.    19 


vested  in  the  supreme  court.  Appeals  from  inferior  and 
local  courts  now  heard  in  the  court  of  common  pleas  for  the 
city  and  county  of  New  York  and  superior  court  of  Buffalo, 
shall  be  heard  in  the  supreme  court  in  such  manner  and  by 
such  justice  or  justices  as  the  appellate  divisions  in  the  re- 
spective departments  which  include  New  York  and  Buffalo 
shall  direct,  unless  otherwise  provided  by  the  legislature. 

3.  All  [the]  jurisdiction  [of  the  circuit  courts  and  courts 
of  oyer  and  terminer]  shall  [after  the  last  day  of  December, 
one  thousand  eight  hundred  and  ninety-five]  be  vested  in  the 
supreme  court  and  all  actions  and  proceedings  then  pending 
in  such  courts  shall  be  transferred  to  the  supreme  court  for 
hearing  and  determination.  Any  justice  of  the  supreme  court, 
except  as  otherwise  provided  in  this  article,  may  hold  court 
in  any  county. 

4.  For  the  relief  of  surrogates  courts  the  legislature  may 
confer  upon  the  supreme  court  in  any  county  having  a  popu- 
lation exceeding  four  hundred  thousand,  the  powers  and 
jurisdictions  of  surrogates,  with  authority  to  try  issues  of 
fact  by  jury  in  probate  cases. 

Section   16.     [Clerks    of    the    supreme    court,    shall    have] 
such  powers  and  duties  as  shall  be  prescribed  by  law. 
(1846.  VI,  19;  1869,  VI,  20) 


Cuiintv  Courts 
Art.   VI,   Sec.    14 


Art.   VI,   Sec.   14 


Section  17.  County  courts  shall  have  the  powers  and 
jurisdiction  they  now  possess,  and  also  original  jurisdiction  in 
actions  for  the  recovery  of  money  only,  where  the  defendants 
reside  in  the  county,  and  in  which  the  complaint  demands 
judgrnent  for  a  sum  not  exceeding  two  thousand  dollars. 

(1846,  VI,  15;  as  amended  1869;  see  1846,  VI,  14) 

2.  All  the  jurisdiction  of  the  court  of  sessions  in  each 
county,  except  the  county  of  New  York,  shall  [after  the  last 
day  of  December,  one  thousand  eight  hundred  and  ninety-five] 
be  vested  in  the  county  court  thereof,  and  all  actions  and  pro- 
ceedings then  pending  in  such  courts  of  sessions  shall  be  trans- 
ferred to  said  county  courts  for  hearing  and  determination. 
Every  county  judge  shall  perform  such  duties  as  may  be 
required  by  law. 

(1846,  VL  14;  1869.  VI,  15) 

3.  A  county  judge  of  any  county  may  hold  county  courts 
in  any  other  county  when  requested  by  the  judge  of  such 
other  county. 

(1846.  VT,  15;  as  amended  1869) 


Art.   VI,   Sec.    IS 


Court  of  Special 

Sessions 

Art.   VI,   Sec.  23 


4.  The  legislature  may  hereafter  enlarge  or  restrict  the 
jurisdiction  of  the  county  courts,  provided,  however,  that 
their  jurisdiction  shall  not  be  so  extended  as  to  authorize  an 
action  therein  for  the  recovery  of  money  only,  in  which  the 
sum  demanded  exceeds  two  thousand  dollars,  or  in  which  any 
person  not  a  resident  of  the  county  is  a  defendant. 

(1846,  VI.  15;  as  amended  1876) 

5.  The  county  judge  shall  be  surrogate  of  his  county, 
except  where  a  separate  surrogate  has  been  or  shall  be  elected. 

(1846,  VI,  15;  as  amended  1876) 

Section  18.  [Courts  of  special  sessions]  shall  have  juris- 
diction of  offenses  of  the  grade  of  misdemeanors  as  may  be 
Drescribed  by  law. 

(1846,  VI,  26;  as  amended  1869) 

232 


APPENDIX    I.— CONSTITUTION    OF    189Jf,    REARRANGED    AND    ANNOTATED 


Surrogates   Courts 
Art.   VI,   Sec.    15 


Justices  of  the  Peace 
Art.   VI,   Sec.    17 


Courts  Created  by 
the  Legislature 
Art.  VI,   Sec.    18 


Court  of  Impeachment 
Art.   VI,    Sec.    13 


Jurisdiction  and 
Proceedings 
Art.    VI,    Sec.    3 


Section  19.  Surrogates  and  surrogates  courts  shall  have 
the  jurisdiction  and  powers  which  the  surrogates  and  existing 
surrogates  courts  now  possess,  until  otherwise  provided  by 
the  legislature. 

(1846,  VI,  15;  1869,  VI,  15) 

Section  20.  [Justices  of  the  peace  and  district  court  jus- 
tices in  cities  shall  have  such  powers  as  may  be  prescribed  by 
law]. 

(1846,  VI,  18;  as  amended  1869) 

Section  21.  The  legislature  shall  not  hereafter  confer 
upon  any  inferior  or  local  court  of  its  creation,  any  equity 
jurisdiction  or  any  greater  jurisdiction  in  other  respects  than 
is  conferred  upon  county  courts  by  or  under  this  article. 

Section  22.  [The  court  of  impeachment  shall  have  the 
usual  powers  but]  judgment  in  cases  of  impeachment  shall 
not  extend  further  than  to  removal  from  office,  or  removal 
from  office  and  disqualification,  to  hold  and  enjoy  any  office 
of  honor,  trust  or  profit  under  this  state;  but  the  party  im- 
peached shall  be  liable  to  indictment  and  punishment  according 
to  law 

(1777,  XXXIII;  1821,  V,  2;  1846,  VI,  1) 

Section    23.     Except    as    herein    otherwise    provided,    the 
legislature  shall  have  the  same  power  to  alter  and  regulate 
the  jurisdiction  and  proceedings  in  law  and  in  equity  that  it 
has  heretofore  exercised. 
(1846.  VI,  5) 


Witnesses 
Art.    I,    Sec.    3 


Libels 

Art.   I,   Sec.   8 


Taking  Private 

Property 

Art.    I,    Sec.    7 


Apportionment 
Art.   Ill,   Sec.    S 


Equity 

Art.    VI,    Sec.    3 


Limitations  of  Poivers  of  Courts 

Section  24.  No  person  shall  be  rendered  incompetent  to 
be  a  witness  on  account  of  his  opinion  on  matters  of  religious 
belief 

(1846,  I,  3) 

Section  25.  In  all  criminal  prosecutions  or  indictments 
for  libels,  the  truth  may  be  given  in  evidence  to  the  jury; 
and  if  it  shall  appear  to  the  jury  that  the  matter  charged  as 
libelous  is  true,  and  was  published  with  good  motives  and  for 
justifiable  ends,  the  party  shall  be  acquitted;  and  the  jury 
shall  have  the  right  to  determine  the  law  and  the  fact. 
(1821,  VI,  8;  1846,  I,  8) 

Section  26.  When  private  property  shall  be  taken  for 
any  public  use,  the  compensation  to  be  made  therefor,  when 
such  compensation  is  not  made  by  the  state,  shall  be  ascer- 
tained by  a  jury,  or  by  the  supreme  court  with  or  without  a 
jury,  but  not  with  a  referee,  or  by  not  less  than  three  com- 
missioners appointed  by  a  court  of  record,  as  shall  be  pre- 
scribed by  law. 

(1846,  I,  7) 

Section  27.  An  apportionment  by  the  legislature  or  other 
body,  shall  be  subject  to  review  by  the  supreme  court,  at  the 
suit  of  any  citizen,  under  such  reasonable  regulations  as  the 
legislature  may  prescribe ;  and  any  court  before  which  a  cause 
may  be  pending  involving  an  apportionment,  shall  give  pre- 
cedence thereto  over  all  other  causes  and  proceedings,  and  if 
said  court  be  not  in  session  it  shall  convene  promptly  for  the 
disposition  of  the  same. 

Section  28.  The  testimony  in  equity  cases  shall  be  taken 
in  like  manner  as  in  cases  at  law. 

(1846,  VI,  10;  1869,  VI,  8) 

233 


Article  XI 


LOCAL 


GOVERNMENT— SUBDIVISION 
THE  STATE 


OF 


Cities 

Classification 
Art.   XII,    Sec.    2 


Section  1.  All  cities  are  classified  according  to  the  latest 
state  enumeration,  as  from  time  to  time  made,  as  follows : 
the  first  class  includes  all  cities  having  a  population  of  one 
hundred  and  seventy-five  thousand,  or  more;  the  second  class, 
all  cities  having  a  population  of  fifty  thousand  and  less  than 
one  hundred  and  seventy-five  thousand;  the  third  class,  all 
other  cities. 


Organization 
Art.   XII,   Sec.    1 


Section  2.  It  shall  be  the  duty  of  the  legislature  to  pro- 
vide for  the  organization  of  cities  and  incorporated  villages, 
and  to  restrict  their  power  of  taxation,  assessment,  borrowing 
money,  contracting  debts,  and  loaning  their  credit,  so  as  to 
prevent  abuses  in  assessments  and  in  contracting  debt  by  such 
municipal  corporations. 

(1846,  VIII,  9,  without  change) 


Excess  Condemnation 
Art.    I,    Sec.    7 


Section  3.  The  legislature  may  authorize  cities  to  take 
more  land  and  property  than  is  needed  for  actual  construction 
in  the  laying  out,  widening,  extending  or  relocating  parks, 
public  places,  highways  or  streets ;  provided,  however,  that  the 
additional  land  and  property  so  authorized  to  be  taken  shall 
be  no  more  than  sufi^icient  to  form  suitable  building  sites 
abutting  on  such  park,  public  place,  highway  or  street.  After 
so  much  of  the  land  and  property  has  been  appropriated  for 
such  park,  public  place,  highway  or  street  as  is  needed  there- 
for, the  remainder  may  be  sold  or  leased. 

(Added  by  vote  of  the  people  1913) 


County  Board  of 

Supervisors 

Art.   Ill,   Sec.  26 


Section  4.  There  shall  be  in  each  county,  except  in  a 
county  wholly  included  in  a  city,  a  board  of  supervisors,  to 
be  composed  of  such  members,  and  elected  in  such  manner, 
and  for  such  period,  as  is  or  may  be  provided  by  law.  In  a 
city  which  includes  an  entire  county  or  two  or  more  entire 
counties,  the  powers  and  duties  of  a  board  of  supervisors 
may  be  devolved  upon  the  municipal  assembly,  common 
council  or  board  of  aldermen,  or  other  legislative  body  of 
the  city. 

(Added  to  1846,  III,  as  section  22,  by  vote  of  the 
people,   1874;   amended   1899) 


Legislative  Powers, 

Auditors 

Art.  Ill,  Sec.   27 


Section  5.  The  legislature  shall,  by  general  laws,  confer 
upon  the  boards  of  supervisors  of  the  several  counties  of  the 
state  such  further  powers  of  local  legislation  and  adminis- 
tration as  the  legislature  may  from  time  to  time  deem  ex- 
pedient [1]  and  in  counties  which  now  have,  or  may  hereafter 
have,  county  auditors  or  other  fiscal  officers,  authorized  to 
audit  bills,  accounts,  charges,  claims  or  demands  against  the 
county,  the  legislature  may  confer  such  powers  upon  said  audi- 
tors, or  fiscal  officers,  as  the  legislature  may,  from  time  to 
fime,  deem  expedient. 

(First  part  to  [1],  1846,  III,  17,  changed  to  section 
2v3,  by  vote  of  the  people,  1874 ;  the  remainder 
added  1909) 


Liability 

Art.    X,    Sec.    1 


Section  6.     The  county  shall  never  be  made  responsible  for 
the  acts  of  the  sheriff. 

(1821,  IV,  8;  1846,  X,  1) 

234 


APPENDIX    I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


Money   or  Credit  Not 
to  be  Given  for 
Private   Purposes 
Art.  VIII,  Sec.  10 


Charitable 

Institutions 

Art.  VIII,  Sec.  14 


Indebtedness 

Art.  VIII,  Sec.   10 


Art.  VIII.  Sec.  10 


Section  7.  No  county,  city,  town  or  village  shall  here- 
after give  any  money  or  property,  or  loan  its  money  or  credit 
to  or  in  aid  of  any  individual,  association  or  corporation,  or 
become  directly  or  indirectly  the  owner  of  stock  in  or  bonds 
of,  any  association  or  corporation ;  nor  shall  any  such  county, 
city,  town  or  village  be  allowed  to  incur  any  indebtedness  ex- 
cept for  county,  city,  town  or  village  purposes.  This  section 
shall  not  prevent  such  county,  city,  town  or  village  from  mak- 
ing such  provision  for  the  aid  or  support  of  its  poor  as  may 
be  authorized  by  law. 

(Added  to  1846,  VIII,  as  section  11,  by  vote  of  the 
people,  1874) 

Section  S.  [Nothing  in  this  constitution  shall]  prevent  any 
county,  city,  town  or  village  from  providing  for  the  care,  sup- 
port, maintenance  and  secular  education  of  inmates  of  orphan 
asylums,  homes  for  dependent  children  or  correctional  insti- 
tutions, whether  under  public  or  private  control.  Payments 
by  counties,  cities,  towns  and  villages  to  charitable  eleemosy- 
nary, correctional  and  reformatory  institutions,  wholly  or 
partly  under  private  control,  for  care,  support  and  main- 
tenance, may  be  authorized,  but  shall  not  be  required  by  the 
legislature.  No  such  payments  shall  be  made  for  any  inmate 
of  such  institutions  who  is  not  received  and  retained  therein 
pursuant  to  rules  established  by  the  state  board  of  charities. 
Such  rules  shall  be  subject  to  the  control  of  the  legislature 
by  general  laws. 

Section  9.  No  county  or  city  shall  be  allowed  to  become 
indebted  for  any  purpose  or  in  any  manner  to  an  amount 
which,  including  existing  indebtedness,  shall  exceed  ten  per 
centum  of  the  assessed  valuation  of  the  real  estate  of  such 
county  or  city  subject  to  taxation,  as  it  appeared  by  the  assess- 
ment rolls  of  said  county  or  city  on  the  last  assessment  for 
the  state  or  county  taxes  prior  to  the  incurring  of  such  in- 
debtedness;  and  all  indebtedness  in  excess  of  such  Ijmitatioii, 
except  such  as  now  may  exist,  shall  be  absolutely  void,  except 
as  herein  otherwise  provided.  No  county  or  city  whose  pres- 
ent indebtedness  exceeds  ten  per  centum  of  the  assessed  valua- 
tion of  its  real  estate  subject  to  taxation,  shall  be  allowed  to 
become  indebted  in  any  further  amount  until  such  indebted- 
ness shall  be  reduced  within  such  limit. 

(1846,  VIII,  11,  added  by  vote  of  the  people,  1884; 
1894,  VIII,  10) 

2.  This  section  shall  not  be  construed  to  prevent  the  issu- 
ing of  certificates  of  indebtedness  or  revenue  bonds  issued  in 
anticipation  of  the  collection  of  taxes  for  amounts  actually 
contained,  or  to  be  contained  in  the  taxes  for  the  year,  when 
such  certificates  or  revenue  bonds  are  issued  and  payable  out 
of  such  taxes,  nor  to  prevent  the  city  of  New  York  from 
issuing  bonds  to  be  redeemed  out  of  the  tax  levy  for  the  year 
next  succeeding  the  year  of  their  issue,  provided  that  the 
amount  of  such  bonds  which  may  be  issued  in  any  one  year  in 
excess  of  the  limitations  herein  contained  shall  not  exceed 
one-tenth  of  one  per  centum  of  the  assessed  valuation  of  the 
real  estate  of  said  city  subject  to  taxation.  Nor  shall  this 
section  be  construed  to  prevent  the  issue  of  bonds  to  provide 
for  the  supply  of  water;  but  the  term  of  the  bonds  issued 
to  provide  the  supply  of  water  in  excess  of  the  limitation  of 
indebtedness  fixed  herein,  shall  not  exceed  twenty  years,  and 
a  sinking  fund  shall  be  created  on  the  issuing  of  said  bonds 
for  their  redemption,  by  raising  annually  a  sum  which  will 
produce  an  amount  equal  to  the  sum  of  the  priticipal  and 
interest  of  said  bonds  at  their  maturity.     All  certificates  of 

235 


indebtedness  or  revenue  bonds  issued  in  anticipation  of  the 
collection  of  taxes,  which  are  not  retired  within  five  years 
after  their  date  of  issue,  and  bonds  issued  to  provide  for  the 
supply  of  water,  and  any  debt  hereafter  incurred  by  any  por- 
tion or  part  of  a  city,  if  there  shall  be  any  such  debt,  shall 
be  included  in  ascertaining  the  power  of  the  city  to  become 
otherwise  indebted  except  that  debts  incurred  by  the  city  of 
New  York  after  the  first  day  of  January,  nineteen  hundred 
and  four,  and  debts  incurred  by  any  city  of  the  second  class 
after  the  first  day  of  January,  nineteen  hundred  and  eight, 
and  debts  incurred  by  any  city  of  the  third  class  after  the 
first  day  of  January,  nineteen  hundred  and  ten,  to  provide  for 
the  supply  of  water,  shall  not  be  so  included;  and  except 
further  that  any  debt  hereafter  incurred  by  the  city  of  New 
York  for  a  public  improvement  owned  or  to  be  owned  by  the 
city,  which  yields  to  the  city  current  net  revenue,  after  mak- 
ing any  necessary  allowance  for  repairs  and  maintenance  for 
which  the  city  is  liable,  in  excess  of  the  interest  on  said  debt 
and  of  the  annual  installments  necessary  for  its  amortiza- 
tion may  be  excluded  in  ascertaining  the  power  of  said  city  to 
become  otherwise  indebted,  provided  that  a  sinking  fund  for 
its  amortization  shall  have  been  established  and  maintained 
and  that  the  indebtedness  shall  not  be  so  excluded  during 
any_ period  of  time  when  the  revenue  aforesaid  shall  not  be 
sufficient  to  equal  the  said  interest  and  amortization  install- 
ments, and-  except  further  that  any  indebtedness  heretofore 
incurred  by  the  city  of  New  Y'ork  for  any  rapid  transit  or 
dock  investment  may  be  so  excluded  proportionately  to  the 
extent  to  which  the  current  net  revenue  received  by  said  city 
therefrom  shall  meet  the  interest  and  amortization  install- 
ments thereof,  provided,  that  any  increase  in  the  debt  incur- 
ring power  of  the  city  of  New  York  which  shall  result  from 
the  exclusion  of  debts  heretofore  incurred  shall  be  available 
only  for  the  acquisition  or  construction  of  properties  to  be 
used  for  rapid  transit  or  dock  purposes. 

(1846.  VIIT.  11,  added  by  vote  of  the  people,  1884; 
1894,  VIII,  10;  amended  1905,  1907,  1909) 

Art.  VIII,  Sec.  10  3.     The   legislature   shall   prescribe   the   method   by   which 

and  the  terms  and  conditions  under  which  the  amount  of  any 
debt  to  be  so  excluded  shall  be  determined,  and  no  such  debt 
shall  be  excluded  except  in  accordance  with  the  determination 
so  prescribed. 

(Added  by  vote  of  the  people  1909) 

Art.  VIII,  Sec.  10  4.     The  legislature  may  in  its  discretion  confer  appropriate 

jurisdiction  on  the  appellate  division  of  the  supreme  court 
in  the  first  judicial  department  for  the  purpose  of  determining 
the  amount  of  any  debt  to  be  so  excluded. 

(Added  by  vote  of  the  people,  1909) 

Art.  VIII,  Sec.  10  5.     No   indebtedness    of    a    city    valid    at    the    time    of   its 

inception   shall  thereafter   become   invalid   by   reason   of   the 
operation  of  any  of  the  provisions  of  this  section. 
(Added  by  vote  of  the  people,  1909) 

Art.  VIII,  Sec.  10  6.     Whenever  the  boundaries  of  any  city  are  the  same  as 

those  of  a  county,  or  when  any  city  shall  include  within  its 
boundaries  more  than  one  county,  the  power  of  any  county 
wholly  included  within  such  city  to  become  indebted  shall 
cease,  but  the  debt  of  the  county,  heretofore  existing,  shall 
not,  for  the  purposes  of  this  section,  be  reckoned  as  a  part  of 
the  city  debt. 

(Amended  by  vote  of  the  people,   1899) 

236 


APPENDIX    I.— CONSTITUTION    OF    189J,,    REARRANGED    AND    ANNOTATED 

Tax  Rate  Section   10.     The   amount  hereafter   to   be  raised   by   tax 

Art.  VIII,  Sec.  10  £qj.  j^Qunty  or  city  purposes,  in  any  county  containing  a  city 

of  over  one  hundred  thousand  inhabitants,  or  any  such  city 
of  this  state,  in  addition  to  providing  for  the  principal  and 
interest  of  existing  debt,  shall  not  in  the  aggregate  exceed 
in  any  one  year  two  per  centum  of  the  assessed  valuation 
of  the  real  and  personal  estate  of  such  county  or  city,  to  be 
ascertained  as  prescribed  in  [the  foregoing]  section  in  respect 
to  county  or  city  debt. 

(1846,  VIII,  11 ;  added  by  vote  of  the  people,  1884) 

Extra   Compensation  Section   11.     [Neither]    the  common  council   of   any  city> 

Art.  Ill,  Sec.  28  nor   any  board   of   supervisors    [shall]    grant  any   extra  com- 

pensation to  any  public  officer,  servant,  agent  or  contractor. 
(1846,  III,  24;  added,  1874) 

Article  XII 
AMENDMENTS 

.■\rt.  XIV,  Sec.  1  Section  1.     Any  amendment  or  amendments  to  this   Con- 

stitution may  be  proposed  in  the  senate  and  assembly;  and 
if  the  same  shall  be  agreed  to  by  a  majority  of  the  members 
elected  to  each  of  the  two  houses,  such  proposed  amendment 
or  amendments  shall  be  entered  on  their  journals,  with  the 
yeas  and  nays  taken  thereon,  and  referred  to  the  legislature 
to  be  chosen  at  the  next  general  election  of  senators,  and 
shall  be  published  for  three  months  previous  to  the  time  of 
making  such  choice;  and  if  in  the  legislature  so  next  chosen, 
as  aforesaid,  such  proposed  amendment  or  amendments  shall 
be  agreed  to  by  a  majority  of  all  the  members  elected  to  each 
house,  then  it  shall  be  the  duty  of  the  legislature  to  submit 
such  proposed  amendment  or  amendments  to  the  people  for 
approval  in  such  manner  and  at  such  times  as  the  legislature 
shall  prescribe;  and  if  the  people  shall  approve  and  ratify 
such  amendment  or  amendments  by  a  majority  of  the  electors 
voting  thereon,  such  amendment  or  amendments  shall  become 
a  part  of  the  Constitution  from  and  after  the  first  day  of 
January  next  after  such  approval. 

(1821,  VIII;  1846,  XIII,  1) 

Art.  XIV,  Sec.  2  Section  2.     At  the  general  election  to  be  held  in  the  year 

one  thousand  nine  hundred  and  sixteen,  and  every  twentieth 
year  thereafter,  and  also  at  such  times  as  the  Legislature  may 
by  law  provide,  the  question :  "  Shall  there  be  a  convention 
to  revise  the  Constitution  and  amend  the  same?"  shall  be 
decided  by  the  electors  of  the  state;  and  in  case  a  majority 
of  the  electors  voting  thereon  shall  decide  in  favor  of  a  con- 
vention for  such  purpose,  the  electors  of  every  senate  dis- 
trict of  the  state,  as  then  organized,  shall  elect  three  delegates 
at  the  next  ensuing  general  election  at  which  members  of  the 
assembly  shall  be  chosen,  and  the  electors  of  the  state  voting 
at  the  same  election  shall  elect  fifteen  delegates-at-large.  The 
delegates  so  elected  shall  convene  at  the  capitol  on  the  first 
Tuesday  of  April  next  ensuing  after  their  election,  and  shall 
continue  their  session  until  the  business  of  such  convention 
shall  have  been  completed.  Every  delegate  shall  receive  for 
his  services  the  same  compensation  and  the  same  mileage  as 
shall  then  be  annually  payable  to  the  members  of  the  assembly. 
A  majority  of  the  convention  shall  constitute  a  quorum  for 
the  transaction  of  business,  and  no  amendment  to  the  Con- 
stitution shall  be  submitted  for  approval  to  the  electors  as 
hereinafter  provided,  unless  by  the  assent  of  a  majority  of  all 
the   delegates   elected   to   the   convention,    the   yeas   and   nays 

2Z7 


being  entered  on  the  journal  to  be  kept.  The  convention 
shall  have  the  power  to  appoint  such  officers,  employees  and 
assistants  as  it  may  deem  necessary,  and  fix  their  compensa- 
tion and  to  provide  for  the  printing  of  its  documents,  journal 
and  proceedings.  The  convention  shall  determine  the  rules 
of  its  own  proceedings,  choose  its  own  officers,  and  be  the 
judge  of  the  election,  returns  and  qualifications  of  its  mem- 
bers. In  case  of  a  vacancy,  by  death,  resignation  or  other 
cause,  of  any  district  delegate  elected  to  the  convention,  such 
vacancy  shall  be  filled  by  a  vote  of  the  remaining  delegates 
representing  the  district  in  which  such  vacancy  occurs.  If 
such  vacancy  occurs  in  the  office  of  a  delegate-at-large,  such 
vacancy  shall  be  filled  by  a  vote  of  the  remaining  delegates-at- 
large.  Any  proposed  constitution  or  constitutional  amendment 
which  shall  have  been  adopted  by  such  convention,  shall  be 
submitted  to  a  vote  of  the  electors  of  the  state  at  the  time 
and  in  the  manner  provided  by  such  convention,  at  an  election 
which  shall  be  held  not  less  than  six  weeks  after  the  adjourn- 
ment of  such  convention.  Upon  the  approval  of  such  con- 
stitution or  constitutional  amendments,  in  the  manner  pro- 
vided in  the  last  preceding  section,  such  constitution  or  con- 
stitutional amendment  shall  go  into  effect  on  the  first  day  of 
January  next  after  such  approval. 
(1<S46,  XIII,  2) 

Art.  XIV,  Sec.  3  Section  3.     Any  amendment  proposed   by  a  constitutional 

convention  relating  to  the  same  subject  as  an  amendment 
proposed  by  the  Legislature,  coincidently  submitted  to  the 
people  for  approval  at  the  general  election  held  in  the  year 
one  thousand  eight  hundred  and  ninety-four,  or  at  any  sub- 
sequent election,  shall,  if  approved,  be  deemed  to  supersede 
the  amendment  so  proposed  by  the  legislature. 

Article  XIII 

PROVISIONS  OF  PRIVATE  LAW  INCLUDED 

IN   CONSTITUTION* 

Reenactment  of  the  Section  1.     Such   parts   of   the   common   law%   and.  of   the 

Present  J.azvs^^  acts    of    the    legislature    of    the    colony    of    New    York,    as 

Art.     ,     ec.  together  did  form  the  law  of  said  colony,  on  the  nineteenth 

day  of  April,  one  thousand  seven  hundred  and  seventy-five, 
and  the  resolutions  of  the  congress  of  the  said  colony,  and 
of  the  convention  of  the  state  of  New  York,  in  force  on 
the  twentieth  day  of  April,  one  thousand  seven  hundred 
and  seventy-seven,  which  have  not  since  expired,  or  been 
repealed  or  altered ;  and  such  acts  of  the  legislature  of 
this  state  as  are  now  in  force,  shall  be  and  continue  the 
law  of  this  state,  subject  to  such  alterations  as  the  legis- 
lature shall  make  concerning  the  same.  But  all  such  parts 
of  the  common  law,  and  such  of  the  said  acts,  or  parts 
thereof,  as  are  repugnant  to  this  Constitution  are  hereby 
abrogated. 

(1777.  XXXV,  1821,  VII.  13;  1846,  I,  17) 

•  It  is  a  common  thing  to  find  in  a  charter  of  government  (or  so-called  written  constitution) 
certain  provisions  which,  logically,  form  no  part  of  a  constitution,  but  which  partake  of  the 
nature  of  legislation.  Such  provisions  as  these  have  been  collected  here  under  the  above  title. 
In  making  the  classification,  those  parts  of  the  charter  which  I'rovide  for  tlie  structure 
and  the  exercise  of  the  powers  of  government  have  been  regarded  as  constitutional  and 
those  parts  which  are  directed  to  the  individual  are  regarded  as  statutory.  In  other  words, 
it  is  conceived  that  the  "  constitution  "  is  that  body  of  laws  which  is  set  up  by  the  state, 
through  its  authorized  agents,  for  the  regulation  of  the  government,  while  "  tlie  provisions  of 
private  law  "  is  that  body  of  law  which  is  established  for  the  regidation  of  society.  As  a 
matter  of  giving  certain  statutes  greater  permanence  and  placing  them  be\'«nd  the  power  of 
government  to  alter,  it  has  been  customary  to  have  them  enacted  by  the  superior  constitueat 
body.     This  acco'.:nts  for  the  statutes  which"  we  find  in  the  acts  of  constituent  assemblies. 

238 


APPENDIX    I.—CONSriTUriON    OF    189',.    REARRANGED    AND    ANNOTATED 


Contracts 

Art.    I,    Sec.    17 


Section  2.  All  grants  of  land  within  the  state,  made  by 
the  king  of  Great  Britain,  or  persons  acting  under  his  au- 
thority, after  the  fourteenth  day  of  October  one  thousand 
seven  hundred  and  seventy-five,  shall  be  null  and  void ;  but 
nothing  contained  in  this  Constitution  shall  affect  any  grants 
of  land  within  this  state,  made  by  the  authority  of  the  said 
king  or  his  predecessors,  or  shall  annul  any  charters  to 
bodies  politic  and  corporate,  by  him  or  them  made,  before 
that  day;  or  shall  affect  any  such  grants  or  charters  since 
made  by  this  state,  or  by  persons  acting  under  its  authority, 
or  shall  impair  the  obligation  of  any  debts  contracted  by 
the  state,  or  individuals,  or  bodies  corporate,  or  any  other 
rights  of  property,  or  any  suits,  actions,  rights  of  action, 
or   other   proceedings    in   courts   of   justice. 

(1777,  XXXVI;  1821,  VII,  14;  1846,  I,  18) 


Land  Law 

Escheat 

Art.    I,    Sec.    10 


Allodial    Lands 
Art.   I,   Sec.   12 


Section  3.  The  people  of  this  state,  in  their  right  of 
sovereignty,  are  deemed  to  possess  the  original  and  ultimate 
property  in  and  to  all  lands  within  the  jurisdiction  of  the 
state;  and  all  lands  the  title  to  which  shall  fail,  from  a 
defect  of  heirs,  shall  revert,  or  escheat  to  the  people. 
(1846,  I,  11) 

Section  4.     All    lands    within    this    state    are    declared    to 
be   allodial,   so   that,   subject  only   to   the  liability   to   escheat, 
the   entire   and    absolute   property   is    vested    in    the   owners, 
according  to   the  nature   of   their   respective   estates. 
(1846,  I,  13) 


Feudal  Tenure 
Art.    I,    Sec.    11 


Lease   of  Agricultural 

Lands 

Art.  I.  Sec.   13 


Restraints   on 
Alienation 
Art.  I,   Sec.   14 


Art.    I,    Sec.    IS 


Canals 

Art.  VII,  Sec.  9 


Corporations 

Definition 

Art.  VIII,   Sec.   3 


Section  5.     All    feudal   tenures    of   every   description   with 
all    their    incidents,    are    declared    to    be    abohshed,    saving, 
however,   all   rents   and    services   certain    which   at   any   time 
heretofore   have   been   lawfully   created   or   reserved. 
(1846,  I,  12) 

Section  6.  No  lease  or  grant  of  agricultural  land.,  for  a 
longer  period  than  twelve  years,  hereafter  made  in  which 
shall  be  reserved  any  rent  or  service  of  any  kind,  shall  be 
valid. 

(1846,  I,  14) 

Section  7.     All  fines,  quarter  sales,  or  other  like  restraints 
upon    alienation    reserved    in    any    grant    of    land,    hereafter 
to  be  made,   shall  be  void. 
(1846,  I,  IS) 

Section  S.  No  purchase  or  contract  for  the  sale  of  lands 
in  this  state  made  since  the  fourteenth  day  of  October,  one 
thousand  seven  hundred  and  seventy-five ;  or  which  may 
hereafter  be  made,  of,  or  with  the  Indians,  shall  be  valid, 
unless  made  under  the  authority,  and  with  the  consent  of 
the  legislature. 

(1777,  XXXVII;  1821,  VII,  12;  1846,  I,  16) 

Section  9.  No  tolls  shall  hereafter  be  imposed  on  persons 
or  property  transported  on  the  canals,  but  all  boats  navigating 
the  canals,  and  the  owners  and  masters  thereof,  shall  be  sub- 
ject to  such  laws  and  regulations  as  have  been  or  may 
hereafter  be  enacted  concerning  the  navigation  of  the  canals. 
(1846,  VII,  2;  as  amended,  1874) 

Section  10.  The  term  corporations  as  used  in  this  article 
shall  be  construed  to  include  all  associations  and  joint  stock 
companies  having  any  of  the  powers  or  privileges  of  cor- 
porations not  possessed  by  individuals  or  partnerships.     And 

239 


APPENDIX 


all  corporations  shall  have  the  right  to  sue  and  shall  be 
subject  to  be  sued  in  all  courts  in  like  cases  as  natural 
persons. 

(1846,  VIII,  3). 

A^f'^vfll   S      4  Section  11.     Corporations  or  associations  may  be  formed 

'    ^*^'  for  [savings  bank]  purposes  under  general  laws. 

(1846,  VIII,  4) 

Savings  Bank  Section  12.     All   charters   hereafter   granted   for    [savings 

Art.  \  III,  Sec.  4  bank]  corporations  shall  be  made  to  conform  to  [the]  general 

laws  and  to  such  amendments  as  may  be  made  thereto. 

2.  No  such  corporation  shall  have  any  capital  stock,  nor 
shall  the  trustees  thereof,  or  any  of  them,  have  any  interest 
whatever,  direct  or  indirect,  in  the  profits  of  such  corpora- 
tion; and  no  director  or  trustee  of  any  such  bank  or  institu- 
tion shall  be  interested  in  any  loan  or  use  of  any  money  or 
property  of  such  bank  or  institution  for  savings. 
(1846,  VIII,  4;  as  amended,  1874) 

Insolvency  Section  13.     In    case    of   the    insolvency   of    any   bank   or 

Art.  VIII,  Sec.  S  banking  association,  the  billholders  tliereof  shall  be  entitled 

to   preference  in  payment,   over  all   other   creditors   of   such 

liank  or  association. 

(1846,  VIII,  8) 

Liability  of  Section  14.     The    stockholders    of    every   corporation    and 

ArT  Vlll'^'^Sec   7  joint-stock   association    for   lianking   purposes,    shall   be    indi- 

vidually responsible  to  the  amount  of  their  respective  share 
or  shares  of  stock  in  any  such  corporation  or  association,  for 
all  its   debts  and  liabilities   of  every  kind. 
(1846,  VIII,  7) 

^'\"vill   s      2  Section  15.     Dues   from  corporations   shall  be  secured  by 

"'  "^  ■  '  such  individual  liability  of  the  corporators  and  other  means 

as  may  be  prescribed  by  law. 
(1846,  VIII,  2) 

Criminal  Law  Section  16.     Any  corporation,  or  officer  or  agent  thereof, 

Art'^^XlII    Sec    5  ^^'^°   ?\\2i\\    offer    or    promise   to   a   public   officer,    or    person 

elected  or  appointed  to  a  public  office,  any  such  free  pass, 
free  transportation,  franking  privilege  or  discrimination, 
shall  also  be  deemed  guilty  of  a  misdeineanor  and  liable  to 
puni.shment  except  as  herein  provided.  No  person,  or  officer 
or  agent  of  a  corporation  giving  any  such  free  pass,  free 
transportation,  franking  privilege  or  discrimination  hereby 
prohibited,  shall  be  privileged  from  testifying  in  relation 
thereto,  and  he  shall  not  be  liable  to  civil  or  criminal  prose- 
cution therefor  if  he  shall  testify  to  the  giving  of  the  same. 

Art.  XIII,  Sec.  3  Section   17.     Any   per.son   who    shall   offer   or   promise   a 

bribe  to  an  officer,  if  it  shall  be  received,  shall  be  deemed 
guilty  of  a  felony  and  liable  to  punishment,  except  as  herein 
provided.  No  person  offering  a  bribe  shall,  upon  any  prose- 
cution of  the  officer  for  receiving  such  bribe,  be  privileged 
from  testifying  in  relation  thereto,  and  ho  shall  not  be  liable 
to  civil  or  criminal  prosecution  therefor,  if  he  shall  testify 
to  the  giving  or  offering  of  such  bribe.  Any  person  who  shall 
offer  or  promise  a  bribe,  if  it  be  rejected  by  the  officer  to 
whom  it  was  tendered,  shall  be  deemed  guilty  of  an  attempt 
to  liribe,  which  is  hereby  declared  to  be  a  felony. 
(1846,  XV,  2;  added  1874) 

240 


APPENDIX    I.— CONSTITUTION    OF    189 J,,    REARRANGED    AND    ANNOTATED 

Art.  XIII,  Sec.  4  Section  18.     Any  person  charged  with  receiving  a  bribe, 

or  with  offering  or  promising  a  bribe,  shall  be  permitted  to 
testify  in  his  own  behalf  in  any  civil  or  criminal  prosecution 
therefor. 

(1846,  XV,  3;  added  1874) 

Publication  of  Laivs  Section  19.     All  laws  and  judicial  decisions  shall  be  free 

Xxt    Vl'"sec    21  f"'-  publication  by  any  person. 

(1846,  VI,  22;  amended  as   section  23,   1869) 

Article  XIV 
SCHEDULE* 

First  Senate  Districts  Scciion  1.     [Until  after  the  next  enumeration,  the  Senate 

Art.  Ill,  Sec.  3  districts  shall  be  as  follows]  : 

District  number  one  (1)  shall  consist  of  the  counties  of 
Suffolk  and  Richmond. 

District  number  two  (2)  shall  consist  of  the  county  of 
Queens. 

District  number  three  (3)  shall  consist  of  that  part  of  the 
county  of  Kings  comprising  the  first,  second,  third,  fourth, 
fifth  and   sixth  wards  of  the  city  of  Brooklyn. 

District  number  four  (4)  shall  consist  of  that  part  of  the 
county  of  Kings  comprising  the  seventh,  thirteenth,  nineteenth 
and  twenty-first  wards  of  the  city  of  Brooklyn. 

District  number  five  (5)  shall  consist  of  that  part  of  the 
county  of  Kings  comprising  the  eighth,  tenth,  twelfth,  and 
thirteenth  wards  of  the  city  of  Brooklyn,  and  the  ward  of 
the  city  of  Brooklyn  which  was  formerly  the  town  of 
Gravesend. 

District  number  six  (6)  shall  consist  of  that  part  of  the 
county  of  Kings  comprising  the  ninth,  eleventh,  twentieth 
and   twenty-second   wards   of   the   city  of   Brooklyn. 

District  number  seven  (7)  shall  consist  of  that  part  of 
the  county  of  Kings  comprising  the  fourteenth,  fifteenth,  six- 
teenth and  seventeenth  wards  of  the  city  of  Brooklyn. 

District  number  eight  (8)  shall  consist  of  that  part  of 
the  county  of  Kings  comprising  the  twenty-third,  twenty- 
fourth,  twenty-fifth  and  twenty-ninth  wards  of  the  city  of 
Brooklyn,  and  the  town  of  Flatlands. 

District  number  nine  (9)  shall  consist  of  that  part  of  the 
county  of  Kings  comprising  the  eighteenth,  twenty-sixth, 
twenty-seventh  and  twenty-eighth  wards  of  the  city  of 
Brooklyn. 

District  number  ten  (10)  shall  consist  of  that  part  of  the 
county  of  New  York  within  and  bounded  by  a  line  beginning 
at  Canal  street  and  the  Hudson  river  and  running  thence 
along  Canal  street.  Hudson  street,  Dominick  street,  Varick 
street,  Broome  street,  Sullivan  street,  Spring  street,  Broadway, 
Canal  street,  the  Bowery,  Division  street,  Grand  street  and 
Jackson  street,  to  the  East  river  and  thence  around  the  south- 
ern end  of  Manhattan  island  to  the  place  of  beginning,  and 
also  Governor's,  Bedlow's  and  Ellis  Islands. 

District  number  eleven  (11)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  district  number  ten, 
and  within  and  bounded  by  a  line  beginning  at  the  junction 
of  Broadwav  and  Canal  street,  and  running  thence  along 
Broadway,  Fourth  street,  the  Bowery  and  Third  avenue.  St. 
Mark's  place.  Avenue  A,  Seventh  street.  Avenue  B,   Clinton 


*  The  word  "  schedule  "  is  a  term  that  has  come  to  be  used  to  indicate  all  of  the  temporary 
provisions  of  a  Constitution,  or  the  clauses  which  it  becomes  necessary  to  insert  as  a  means 
of   getting   from   the    old    to   the    new   form    of   government. 

241 


street,  Rivington  street,  Norfolk  street,  Division  street.  Bow- 
ery and  Canal  street  to  the  place  of  beginning. 

District  number  twelve  (12)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  district  numbers  ten 
and  eleven  and  within  and  bounded  by  a  line  beginning  at 
Jackson  street  and  the  East  river,  and  running  thence  through 
Jackson  street,  Grand  street,  Division  street,  Norfolk  street, 
Rivington  street,  Clinton  street.  Avenue  B,  Seventh  street, 
Avenue  A,  St.  Mark's  place.  Third  avenue.  East  Fourteenth 
street  to  the  East  River,  and  along  the  East  river  to  the 
place  of  beginning. 

District  number  thirteen  (13)  shall  consist  of  that  part 
of  the  county  of  New  York  lying  north  of  district  number 
ten,  and  within  and  bounded  by  a  line  beginning  at  the  Hud- 
son river  at  the  foot  of  Canal  street,  and  running  thence 
along  Canal  street,  Hudson  street,  Dominick  street,  Varick 
street,  Broome  street,  Sullivan  street.  Spring  street,  Broad- 
way, Fourth  street,  the  Bovvery  and  Third  avenue.  Fourteenth 
street.  Sixth  avenue,  West  Fifteenth  street,  Seventh  avenue. 
West  Nineteenth  street,  Eighth  avenue,  West  Twentieth  street, 
and  the  Hudson  river,  to  the  place  of  beginning. 

District  number  fourteen  (14)  shall  consist  of  that  part 
of  the  county  of  New  York  lying  north  of  districts  numbers 
twelve  and  thirteen,  and  within  and  bounded  by  a  line  be- 
ginning at  East  Fourteenth  street  and  the  East  river,  and 
running  thence  along  East  Fourteenth  street,  Irving  place. 
East  Nineteenth  street.  Third  avenue.  East  Twenty-third 
street,  Lexington  avenue.  East  Fifty-third  street.  Third  ave- 
nue. East  Fifty-second  street  and  the  East  river,  to  the  place 
of  beginning. 

District  number  fifteen  (15)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  district  number  thir- 
teen, and  within  and  bounded  by  a  line  beginning  at  the  junc- 
tion of  West  Fourteenth  street  and  Sixth  avenue,  and  running 
thence  along  Sixth  avenue.  West  Fifteenth  street.  Seventh 
avenue.  West  Fortieth  street.  Eighth  avenue,  and  the  Trans- 
verse road  across  Central  Park  at  Ninety-seventh  street.  Fifth 
avenue.  East  Ninety-sixth  street,  Lexington  avenue,  East 
Twenty-tliird  street.  Third  avenue.  East  Nineteenth  street, 
Irving  place  and  Fourteenth  street,  to  the  place  of  be- 
ginning. _ 

District  number  sixteen  (16)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  district  number  thir- 
teen, and  within  and  bounded  by  a  line  beginning  at  Seventh 
avenue  and  West  Nineteenth  street,  and  running  thence  along 
West  Nineteenth  street,  Eighth  avenue.  West  Twentieth 
street,  the  Hudson  River.  West  Forty-sixth  street.  Tenth  ave- 
nue. West  Forty-third  street.  Eighth  avenue.  West  Fortieth 
street  and  Seventh  avenue,  to  the  place  of  beginning. 

District  number  seventeen  (17)  shall  consist  of  that  part 
of  the  county  of  New  York  lying  north  of  district  number 
sixteen,  and  within  and  bounded  by  a  line  beginning  at  the 
junction  of  Eighth  avenue  and  West  Forty-third  street,  and 
running  tlience  along  West  Forty-third  street.  Tenth  avenue. 
West  Forty-sixth  street,  the  Hudson  river.  West  Eighty-ninth 
street.  Tenth  or  Amsterdam  avenue.  West  Eighty-sixth  street. 
Ninth  or  Columbus  avenue.  West  Eighty-first  street  and 
Eighth  avenue,  to  the  place  of  beginning. 

District  number  eighteen  (18)  shall  consist  of  that  part 
of  the  county  of  New  York  lying  north  of  district  number 
fourteen,  and  within  and  bounded  by  a  line  beginning  at  the 
junction  of  East  Fifty-second  street  and  the  East  river,  and 
running  thence  along  East  Fifty-second  street.  Third  avenue. 
East  Fifty-third  street,  Lexington  avenue.  East  Eighty- fourth 
street.  Second  avenue.  East  Eighty-third  street  and  the  East 

242 


AI'PRNDIX    I.— CONSTITUTION    OF    189-',,    REARRANGED    AND    ANNOTATED 

river,  to  the  place  of  beginning ;  and  also  Blackwell's  Island. 
District  number  nineteen  (19)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  district  number  seven- 
teen, and  within  and  bounded  by  a  line  beginning  at  West 
Eighty-ninth  street  and  the  Hudson  river,  and  running  thence 
along  the  Hudson  river  and  Spuyten  Duyvil  creek  around  the 
northern  end  of  Manhattan  island;  thence  southerly  along 
the  Harlem  river  to  the  north  end  of  Fifth  avenue;  thence 
along  Fifth  avenue.  East  One  Hundred  and  Twenty-ninth 
street,  Fourth  or  Park  avenue,  East  One  Hundred  and 
Tenth  street.  Fifth  avenue,  the  Transverse  road  across  Central 
Park  at  Ninety-seventh  street,  Eighth  avenue,  West  Eighty- 
first  street.  Ninth  or  Columbus  avenue,  West  Eighty-sixth 
street.  Tenth  or  Amsterdam  avenue  and  West  Eighty-ninth 
street,  to  the  place  of  beginning. 

District  number  twenty  (20)  shall  consist  of  that  part  of 
the  county  of  New  York  lying  north  of  districts  numbers 
eighteen  and  fifteen,  and  within  and  bounded  by  a  line  be- 
ginning at  East  Eighty-third  street  and  the  East  river,  run- 
ning thence  through  East  Eighty-third  street.  Second  avenue. 
East  Eighty-fourth  street,  Lexington  avenue.  East  Ninety- 
sixth  street.  Fifth  avenue.  East  One  Hundred  and  Tenth  street, 
Fourth  or  Park  avenue.  East  One  Hundred  and  Nineteenth 
street  to  the  Harlem  river,  and  along  the  Harlem  and  East 
rivers,  to  the  place  of  beginning ;  and  also  Randall's  Island 
and  Ward's  Island. 

All  the  above  districts  in  the  county  of  New  York  bounded 
upon  or  along  the  boundary  waters  of  the  county,  shall  be 
deemed  to  extend  to  the  county  line. 

District  number  twentv-one  (21)  shall  consist  of  that 
part  of  the  county  of  New  York  lying  north  of  districts 
numbers  nineteen  and  twenty,  within  and  bounded  by  a  line 
Iieginn-'ng  at  East  One  Hundred  and  Nineteenth  street  and 
the  Harlem  river,  and  running  thence  along  East  One  Hundred 
and  Nineteenth  street.  Fourth  or  Park  avenue.  One  Hundred 
and  Twenty-ninth  street.  Fifth  avenue  and  the  Harlem  river, 
to  the  place  of  beginning:  and  all  that  part  of  the  county  of 
New  York  not  hereinbefore  described. 

District  number  twenty-two  (22)  shall  consist  of  the 
county  of  Westchester. 

District  number  twenty-three  (23)  shall  consist  of  the 
counties  of  Orange  and  Rockland. 

District  numlier  twenty-four  (24)  shall  consist  of  the 
counties  of  Dutchess,   Columbia  and  Putnam. 

District  number  twenty-five  (25)  shall  consist  of  the  coun- 
ties of  Ulster  and  Greene. 

District  number  twenty-six  (26)  shall  consist  of  the  coun- 
ties of  Delaware,  Chenango  and  Sullivan. 

District  number  twenty-seven  (27)  shall  consist  of  the 
counties  of  Montgomery,  Fulton,  Hamilton  and  Schoharie. 

District  number  twenty-eight  (28)  shall  consist  of  the 
counties  of  Saratoga,  Schenectady  and  Washington. 

District  number  twenty-nine  (29)  shall  consist  of  the 
county  of  Albanv. 

District  number  thirty  (30)  shall  consist  of  the  county  of 
Rensselaer. 

District  number  thirty-one  (31)  shall  consist  of  the  coun- 
ties of  Clinton,  Essex  and  Warren. 

District  number  thirty-two  (32)  shall  consist  of  the  coun- 
ties of  St.  Lawrence  and  Franklin. 

Districts  number  thirty-three  (33)  shall  consist  of  the 
counties  of  Otsego  and  Herkimer.  . 

District  number  thirty-four  (34)  shall  consist  of  the 
county   of    Oneida. 

243 


APPENDIX 


District  number  thirty-five  (35)  shall  consist  of  the 
counties   of   Jefferson   and    Lewis. 

District  number  thirtj-six  (36)  shall  consist  of  the  county 
of  Onondaga. 

District  number  thirty-seven  i?i7)  shall  consist  of  the 
counties    of   Oswego    and    Madison. 

District  number  thirty-eight  (38)  shall  consist  of  the 
counties  of  Broome,  Cortland  and  Tioga. 

District  number  thirty-nine  (39)  shall  consist  of  the 
counties  of  Cayuga  and  Seneca. 

District  number  forty  (40)  shall  consist  of  the  counties 
of  Chemung,  Tompkins  and  Schuyler. 

District  number  forty-one  (41)  shall  consist  of  the  coun- 
ties of   Steuben   and  Yates. 

District  number  forty-two  (42)  shall  consist  of  the  coun- 
ties of  Ontario  and  Wayne. 

District  number  forty-three  (43)  shall  consist  of  that 
part  of  the  county  of  Monroe  comprising  the  towns  of 
Brighton,  Henrietta,  Irondequoit,  Mendon,  Penfield,  Perinton, 
Pittsford,  Rush  and  Webster,  and  the  fourth,  sixth,  seventh, 
eighth,  twelfth,  thirteenth,  fourteenth,  sixteenth,  seventeenth 
and  eighteenth  wards  of  the  city  of  Rochester,  as  at  present 
constituted. 

District  number  forty-four  (44)  shall  consist  of  that  part 
of  the  county  of  Monroe  comprising  the  towns  of  Chili, 
Clarkson,  Gates,  Greece,  Hamlin,  Ogden,  Parma,  Riga, 
Sweden  and  Wheatland,  and  the  first  second,  third,  fifth, 
ninth,  tenth,  eleventh,  fifteenth,  nineteenth  and  twentieth 
wards  of  the  city  of  Rochester,  as  at  present  constituted. 

■District  number  forty-five  (45)  shall  consist  of  the  coun- 
ties of  Niagara,   Genesee  and   Orleans. 

District  number  forty-six  (46)  shall  consist  of  the  coun- 
ties of  Allegheny,  Livingston  and  Wyoming. 

District  number  forty-seven  (47)  shall  consist  of  that 
part  of  the  county  of  Erie  comprising  the  first,  second, 
third,  sixth,  fifteenth,  nineteenth,  twentieth,  twenty-first, 
twenty-second,  twenty-third  and  twenty-fourth  wards  of  the 
city  of   Buffalo,   as  at  present  constituted. 

District  number  forty-eight  (48)  shall  consist  of  that 
part  of  the  county  of  Erie  comprising  the  fourth,  fifth, 
seventh,  eighth,  ninth,  tenth,  eleventh,  twelfth,  thirteenth, 
fourteenth  and  sixteenth  wards  of  the  city  of  Buffalo,  as 
at  present  constituted. 

District  number  forty-nine  (49)  shall  consist  of  that  part 
of  the  county  of  Erie  comprising  the  seventeenth,  eighteenth 
and  twenty-fifth  wards  of  the  city  of  Buffalo,  as  at  present 
constituted;  and  all  the  remainder' of  the  said  county  of  Erie 
not  hereinbefore  described. 

District  number  fifty  (50)  shall  consist  of  the  counties  of 
Chautauqua  and  Cattaraugus. 

(1777,  XH;  amended  1801;  1821,  L  5;  1846,  HI,  3) 

First  Assembly  Section  2.     Until    after    the    next    enumeration,    members 

Districts  of  the  assembly  shall  be  apportioned  to  the  several  counties 

Art.  Ill,  bee.  5  ^g  follows  :    Albany  county,  four  members ;  Allegheny  county, 

one  member ;  Broome  county,  two  members ;  Cattaraugus 
county,  two  members ;  Cayuga  county,  two  members ;  Chau- 
tauqua county,  two  members ;  Chemung  county,  one  member ; 
Chenango  county,  one  member;  Clinton  county,  one  member; 
Columbia  county,  one  member;  Cortland  county,  one  mem- 
ber ;  Delaware  county,  one  member ;  Dutchess  county,  two 
members ;  Erie  county,  eight  members ;  Essex  county,  one 
member;  Franklin  county,  one  member;  Fulton'^and  Hamilton 
counties,  one  member;  Genesee  county,  one  member;  Greene 
county,  one  member;  Herkimer  county,  one  member;  Jeffer- 


244 


APPENDIX    I.— CONSTITUTION    OF    1891,,    REARRANGED    AND    ANNOTATED 


First  Senators 
Art.  Ill,  Sec.  2 


First  Governor  and 
LieMtenant-Governor 
Art.   IV,   Sec.    1 


First   Secretary   of 

State,    Comptroller. 

Treasurer,  Attortie, 

General,    State 

Engineer 

Art.    V,   Sec.   2 


First  State  Boards 
Art.    VIII,    Sec.    15 


First  Judges  and 

Justices 

Term 

Art.  VI,  Sec  7 

Courts  Abolished 
Art.    VI.    Sec.    5 


son  county,  two  members ;  Kings  county,  twenty-one  mem- 
bers;  Lewis  county,  one  member;  Livingston  county,  one 
member;  Madison  county,  one  member;  Monroe  county, 
four  members ;  Montgomery  county,  one  member ;  New  York 
county,  thirty-five  members ;  Niagara  county,  two  members ; 
Oneida  county,  three  members  ;  Onondaga  county,  four  mem- 
liers ;  Ontario  county,  one  member ;  Orange  county,  two 
members ;  Orleans  county,  one  member ;  Oswego  county,  two 
members ;  Otsego  county,  one  meinber ;  Putnam  county,  one 
member ;  Queens  county,  three  members ;  Rennselaer  county, 
three  members ;  Richmond  county,  one  member,  Rockland 
county,  one  member;  St.  Lawrence  county,  two  members; 
Saratoga  county,  one  member;  Schenectady  county,  one 
member;  Schoharie  county,  one  member;  Schuyler  county, 
one  member ;  Seneca  county,  one  member ;  Steuben  county, 
two  members ;  Suffolk  county,  two  members ;  Sullivan  county, 
one  member ;  Tioga  county,  one  inember ;  Tompkins  county, 
one  member ;  Ulster  county,  two  members ;  Warren  county, 
one  member ;  Washington  county,  one  member ;  Wayne 
county,  one  member ;  Westchester  county,  three  members ; 
Wyoming  county,  one  member;  and.  Yates  county,  one  mem- 

(1777,  IV;  amended  1801;  1821,  I,  7;  1846,  III,  5) 

Section  3.  The  senators  elected  in  the  year  one  thousand 
eight  hundred  and  ninety-five  shall  hold  their  offices  for 
three  years. 

Section  4.  The  governor  and  lieutenant-governor  elected 
next  preceding  the  time  when  this  section  shall  take  effect, 
shall  hold  office  until  and  including  the  thirty-first  day  of 
December,  one  thousand  eight  hundred  and  ninety-six,  and 
their  successors  shall  be  chosen  at  the  general  election  in 
that  year. 

Section  5.  The  first  election  of  the  secretary  of  state, 
comptroller,  treasurer,  attorney-general  and  state  engineer 
and  surveyor,  pursuant  to  this  article  shall  be  held  in  the 
year  one  thousand  eight  hundred  and  ninety-five,  and  their 
terms  of  office  shall  begin  on  the  first  day  of  January  fol- 
lowing, and  shall  be  for  three  years.  At  the  general  election 
in  the  year  one  thousand  eight  hundred  and  ninety-eight,  and 
every  two  years  thereafter,  their  successors  shall  be  chosen 
for  the  term  of  two  years. 

Section  6.  Commissioners  of  the  state  board  of  charities 
and  commissioners  of  the  state  commission  in  lunacy,  now 
holding  office  shall  be  continued  in  office  for  the  term  for 
which  they  were  appointed  respectively,  unless  the  Legislature 
shall  otherwise  provide. 

Section  7.  [The  chief  judge  and  associate  judges  of  the 
court  of  appeals  now  in  office]  shall  hold  their  offices  until 
the  expiration  of  their  respective  terms. 

Section  8.  From  and  after  the  first  day  of  January,  one 
thousand  eight  hundred  and  ninety-six,  the  seals,  records, 
papers  and  documents  of  or  belonging  to  [the  superior  court 
of  the  city  of  New  York,  the  court  of  common  pleas  for  the 
city  and  county  of  New  York,  the  superior  court  of  Buffalo, 
and  the  city  court  of  Brooklyn,  abolished  by  this  Constitu- 
tion] shall  be  deposited  in  the  offices  of  the  clerks  of  the 
several  counties  in  which  said  courts  now  exist ;  and  all 
actions  and  proceedings  then  pending  in  such  courts  shall 
be  transferred  to  the  supreme  court  for  hearing  and  determi- 
nation. The  judges  of  said  courts  in  office  on  the  first  day 
of  January,  one  thousand  eight  hundred  and  ninety-six,  shall, 
for  the  remainder  of  the  terms  for  which  they  were  elected 
or  appointed,  be  justices  of  the  supreine  court;  but  they  shall 

245 


APPENDIX 


First  Coinitv  Courts 
Art.    VI,    Sec.    14 


Coiintv    Judge,    Kings 

Coutit'v 

Art.    VI,    Sec.    14 


First  Surrogates 
Art.    VI,   Sec.    15 

First   Justices   of 

Peace 

Art.  VI,  Sec.  22 


Over  and  Terminer 
Art.  VI,  Sec.  6 


First  City  and 
Countv  Officers 
Art.    XII,   Sec.   3 


Appeals  from  General 

Term 

Art.  VI.  Sec.  9 


Time  of  Going  Into 

Effect 

Art.  XV,  Sec.  1 


sit  only  in  the  counties  in  which  they  were  elected  or  ap- 
pointed. Their  salaries  shall  be  paid  by  the  said  counties 
respectively,  and  shall  be  the  same  as  the  salaries  of  the 
other  justices  of  the  supreme  court  residing  in  the  same 
counties.  Their  successors  shall  be  elected  as  justices  of  the 
supreme  court  by  the  electors  of  the  judicial  districts  in  which 
the\'  respectively  reside. 

Section  9.  [The  judges  of  the  county  courts]  now  in 
office  shall  hold  their  offices  until  the  expiration  of  their 
respective  terms. 

Section  10.  The  additional  county  judges  in  the  county 
of  Kings  shall  be  chosen  at  the  general  election  held  in  the 
first  odd-numbered  year  after  the  adoption  of  this  amendment. 

The  additional  county  judges  whose  offices  may  be  created 
by  the  legislature  shall  be  chosen  at  the  general  election  held 
in  the  first  odd-numbered  year  after  the  creation  of  such 
office. 

Section  11.  The  surrogates  now  in  office  shall  hold  their 
offices   until   the   expiration   of   their   terms. 

Section  12.  Justices  of  the  peace  and  other  local  judicial 
officers  provided  for  in  [article  III,  section  2,  paragraph  10, 
section  5.  paragraph  4.  and  in  article  X,  section  10]  in  office 
when  this  article  takes  effect  shall  hold  their  offices  until 
the  expiration  of  their  respective  terms. 

Section  13.  Circuit  courts  and  courts  of  oyer  and  terminer 
are  abolished  from  and  after  the  last  day  of  December,  one 
thousand  eight  hundred  and  ninety-five. 

Section  14.  The  terms  of  office  of  all  [city  and  county 
officers  set  forth  in  article  II,  section  7,  paragraph  7]  elected 
before  the  first  day  of  January,  one  thousand  eight  hundred 
and  ninety-five,  whose  successors  have  not  then  been  elected, 
which  under  existing  laws  would  expire  with  an  even-num- 
bered year,  or  in  an  odd-numbered  year  and  before  the  end 
thereof,  are  extended  to  and  including  the  last  day  of  Decem- 
ber next  following  the  time  when  such  terms  would  otherwise 
expire;  the  terms  of  office  of  all  such  officers,  which  under 
existing  laws  would  expire  in  an  even-numbered  year,  and 
before  the  end  thereof,  are  abridged  so  as  to  expire  at  the 
end  of  the  preceding  year.  This  section  shall  not  apply  to 
any  city  of  the  third  class,  or  to  elections  of  any  judicial 
officer,  except  judges  and  justices  of  inferior  local  courts. 

Section  15.  The  provisions  of  [article  X,  section  13]  shall 
not  apply  to  orders  made  or  judgments  rendered  by  any  gen- 
eral term  before  the  last  day  of  December,  one  thousand  eight 
hundred  and  ninety-five,  but  appeals  therefrom  may  be  taken 
under  existing  provisions  of  law. 

Section  16.  This  Constitution  shall  be  in  force  from  and 
including  the  first  day  of  January,  one  thousand  eight  hundred 
and  ninety-five,  except  as  herein  otherwise  provided. 

Done  in  Convention  at  the  Capitol  in  the  City  of 
Albany,  the  twenty-ninth  day  of  September,  in  the  year 
One  thousand  eight  hundred  and  ninety-four,  and  of 
the  independence  of  the  United  States  of  America  the 
one  hundred  and  nineteenth. 

In  witness  whereof  we  have  hereunto  subscribed 
our  names. 

JOSEPH  HODGES  CHOATE, 

President  and  Delegat^-at-Large. 
Chari.ks  Elliott  Fitch, 

Secretary. 

(See  1821.  IX;  1846,  XIV,  13) 
246 


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